So you want to keep a pet, but your lease has a "No Pet" Clauseby Karen Copeland, Esq.

Defenses to a holdover proceeding based upon the harboring of a pet in violation of a "No Pet" lease provision.

Two types of laws give an individual tenant, renter or cooperative shareholder the right to keep a pet, even if there is a "no pet" provision in the proprietary lease, occupancy agreement, house rules, or lease.

The first, and most widely known types of laws are municipal or local "Pet Laws" which deem that any such "no pet" provision is waived for the duration of the tenancy if the landlord fails to enforce the provision by commencing an action or proceeding within three months of the tenant's open and notorious harboring of the pet.

The second category of laws which would enable a tenant to keep a pet in spite of a "no pet" rule are the federal state, and local laws which prohibit discrimination against the disabled. Such laws mandate that a housing provider grant a "reasonable accommodation" necessary for a disabled person to "use and enjoy" his or her home.

Recent developments in each type of law have enabled many individuals to keep pets, even in the face of considerable opposition by Boards and neighbors. While individual co-op boards and landlords may be within their rights to enact and enforce a "no pet" clause, such prohibitions fail in the face of superseding laws which give tenants the right to keep pets in their homes under certain circumstances, which are discussed here.

The "Pet Law"

In New York City (Administrative Code of the City of New York Section 27-2009.1) and Westchester County (Laws of Westchester County Section 694), statutes commonly known as the "Pet Law" give tenants in all multiple dwellings, including cooperatives and most condominiums, as well as rental housing, and government subsidized housing, the right to keep a pet, even if there is an applicable "no pet" clause in the lease.

Under the "Pet Law", if a landlord fails, within three months of his knowledge of a tenant's open and notorious harboring of a pet, to enforce any applicable "no pet" provision, then any such provision is deemed void. The law applies to unit owners, as well as renters, in co-ops and condos, whether private or government subsidized.

When is the proceeding "commenced" for purposes of the Pet Law?

Appellate Division case law has confirmed that the proceeding is commenced by the service of the Petition and Notice of Petition. (RPAPL Section 731; CPLR Section 401) The case is not commenced by letters, or service of the predicate Notice to Cure or Notice of Termination. Thus, if the landlord fails to serve the Petition and Notice of Petition within three months of has actual or constructive knowledge of the pet, any "no pet" clause is deemed void pursuant to the Pet Law.

The exception to this rule is if the tenant lies about the pet, says he will settle the case, says the dog is only temporary, or makes any representation about the removal of the pet that the landlord relies upon that representation in refraining from proceeding to enforce the "no pet" clause. In such a case the Court may look to the date of the service of the Notice to Cure for the date of commencement of the proceeding. So, if the landlord asks about the dog the recommended response is: "It's my dog. I'm keeping it."

What happens if a tenant has had a pet for many years, but the pet dies? Can the tenant get a new pet to replace the old one under the "Pet Law"?

For years, case law had confirmed that any "no pet" clause was waived years ago by the keeping of a first pet. Once the "no pet" clause has been waived for the duration of the tenancy, it is not revived by the introduction of any new pet, whether it be a replacement for a deceased pet, a second pet, or possibly even one of a different species than the first. Recently appellate case law has limited the New York City Pet Law waiver to a "per pet" basis. In other words, the reintroduction of each new pet revives the three month waiver "Pet Law" period in which the landlord may enforce a "no pet" clause. Legislation is currently pending before the City Council to codify the "per tenancy" waiver interpretation.

In addition, recent decisions suggest that if a pet is kept for a period in excess of six years, the landlord may be barred from enforcement of a no-pet clause by the six year statue of limitations which applies to actions based upon contracts. That pet and any subsequent replacements may have the benefit of the defense of the statute of limitations if pets were kept for a period in excess of six years with no significant hiatus between pets. The landlord may be barred from enforcing the no pet provision due to the six year Statute of Limitations which applies to contracts, even if the landlord acts immediately, within the three month Pet Law waiver period to enforce a no pet clause against the second dog,

There is no requirement under the Pet Law that the permission of the landlord be sought prior to introducing a pet into the home. As long as the Board's employees and agents are aware of the dog by your "open and notorious" behavior, constructive knowledge of the pet will be attributed to the Board, or landlord, in a court of law, for purposes of determining when the three month period commences.

It's important to prove when the tenant got the pet, and when the landlord, by way of its agents and employees, became aware of the pet, and that the keeping of the pet was "open and notorious".

The following suggestions may help to prove in court when a pet first entered the building and when the landlord became aware of it.

1. The best proof is any communication from the landlord which shows that he knew of the dog or dogs for more than three months. Sometimes the landlord will even let three months pass between the time of service of the Notice to Cure and the service of the Petition and Notice of Petition commencing the holdover proceeding.

2. Another form of proof is the testimony of any neighbors who are willing to come into court to testify. the neighbors should be able to testify how long you had the dog, and if the pet were seen by the landlord's employees. (Sorry, letters and petitions from neighbors generally are not admissible in a trial.)

3. Create a paper trail of dated government documents and medical bills to indicate duration of pet ownership. Save the adoption certificate, license, bill of sale, or American Kennel Club papers you receive.

4. Bring the dog to the veterinarian immediately. Save all bills and records of inoculations, rabies tags, spaying or neutering certificates.

5. Take pictures of the pet in the apartment and in the building, and date them when you get them from developing. Every picture is worth a thousand words, so be creative. A photo of you, the dog, and the doorman next to the building Christmas display would show that the building's agents were aware of the dog at a certain point in time, for example. Every cat sits in the window: how about a photo, from the outside of the building, of your cat sitting in the window of your apartment, to prove "open and notorious" harboring of the cat? At least one case has been proven by the tenant's keeping careful photographic records of her dog's growth, from tiny puppy to full grown dog, in the apartment and around the neighborhood.

6. Save any letters or complaints from the Board or management pertaining to the pet.

7. Keep a log in a notebook, used exclusively for this purpose, in which you record any date that workers were in your apartment and saw the dog, or if the super or doorman saw the dog. Make sure that all entries are made on or near the time of the occurrence.

Anti-Discrimination Statutes

Cooperative and condo owners with a physical or mental disability are also protected by the federal Fair Housing Act and the City of New York Civil Rights Act. These laws provide that disabled individuals be given a "reasonable accommodation" to 'use and enjoy' their homes by "housing providers", including co-ops and condos. The failure of a landlord, cooperative or condo board to grant such a "reasonable accommodation" might be found to be an act of discrimination against a disabled person in violation of the aforementioned statutes.

Federal and local case law has recognized that the keeping of a pet can be such a "reasonable accommodation" under the statutes. If a tenant can prove that he has any physical or mental impairment, (and, additionally, which interferes with a major life activity, under the federal law) and has a medical need to keep the pet, which must be proven with the testimony and support of a medical professional then the landlord must permit him to keep it.

Failure of the landlord to grant such a reasonable accommodation to keep a pet is an "unlawful discriminatory practice" under the law, equivalent to refusing to put in a ramp for a wheelchair bound tenant.

The co-op board, or individual unit owner who rents his unit could be liable for compensatory and punitive damages in state or federal court, as well as hefty fines which may be levied by such regulatory agencies as the federal Department of Housing and Urban Development, or the City of New York Commission on Human Rights for failure to grant such an accommodation to a disabled tenant.

The federal Fair Housing Act, and the New York City Civil Rights Law require that a housing provider give a "reasonable accommodation" to a disabled individual to use and enjoy his or her home by keeping a medically necessary companion animal.

The term "disabled" pertains to all kinds of mental and physical disabilities, not just such obvious disabilities as blindness or paralysis. The laws also cover people with conditions such as mental illness, chronic depression, diabetes, hearing loss, AIDs, arthritis. If the tenant can prove disability, (being on Social Security Disability is probably dispositive proof of disability in itself) and prove a medical need for a pet, then the landlord must permit the tenant to keep the pet, or face punitive damages under the statutes preventing discrimination against the disabled. The medical necessity of keeping a pet may be demonstrated, for purposes of filing a complaint with HUD or the City of New York Human Rights Commission, by a doctor's note attesting to the benefits provided by the pet. Your doctor must also be willing to testify at a hearing, although such cases usually settle quickly due to the serious "down-side potential" faced by a landlord.

The law includes, but is not limited to, "seeing eye" dogs, and "hearing" dogs, but also companion animals who provide the service of emotional support to their disabled owners. For example, a key case recently before HUD fined a co-op board several thousands of dollars for refusing to grant the reasonable accommodation of non-enforcement of an applicable "no pet" clause to a tenant with chronic depression to keep her pet Yorkshire terrier, for the unconditional love the dog provides, which her psychiatrist attested that the tenant needed.

If the Board or landlord refuses permission to keep an emotional support assistance pet, or refuses to rent to a disabled person who has shown a medical need to keep an animal, the aggrieved person may file a complaint against the Board with the City Civil Rights Commission or the State Attorney General Civil Rights Office, or file a complaint in federal and state courts for punitive damages for an unlawful discriminatory practice. The statutes may also be used as a defense to an eviction proceeding.

These laws apply equally to the cooperator who rents his unit. The Board may scoff at being asked to refrain from enforcing their "no pet" rules for the benefit of a tenant with a disability such as chronic depression. Nevertheless, such a denial may cost thousands of dollars in fines and punitive damages if the tenant can prove her case to HUD, or in a federal court.

----------------
This article is intended to be of general information and is not a substitute for legal advice. If you are being sued, see an attorney at once to help you to defend yourself and assert your rights under the law.

Karen Copeland is an attorney in private practice focusing on issues pertaining to companion animals in housing. Formerly, she was a staff attorney for the Housing Litigation Bureau of the Department of Housing Preservation and Development of the City of New York. She may be reached at (212) 560-7154. Copyright Karen Copeland 1998; reproduced on TenantNet by permission, all other rights reserved.

The Tenant Network(tm) for Residential Tenants Information from TenantNet is from experienced non-attorney tenant activists and is not considered legal advice.Subscribe to our Twitter Feed @TenantNet

Sec. 27-2009.1 Rights and Responsibilities of Owners and Tenants in Relation to Pets

a. Legislative declaration. The council hereby finds that the enforcement of covenants contained in multiple dwelling leases which prohibit the harboring of household pets has led to widespread abuses by building owners or their agents, who knowing that a tenant has a pet for an extended period of time, seek to evict the tenant and/or his or her pet often for reasons unrelated to the creation of a nuisance. Because household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets under the circumstances provided herein, it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and dislocation of tenants within this city.

b. Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the Multiple Dwelling Law, the Housing Maintenance or the Health Codes of the City of New York or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.

c. It shall be unlawful for an owner or his or her agent, by express terms or otherwise, to restrict a tenant's rights as provided in this section. Any such restriction shall be unenforceable and deemed void as against public policy.

d. The waiver provision of this section shall not apply where the harboring of a household pet causes damage to the subject premise, creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure.

e. The New York City Housing Authority shall be exempt from the provisions of this section.

****
note: Westchester county has a similar law: Westchester County Law §695.01 et seq.

* Providing For Your Pet in the Event of Your Death or Hospitalization (includes new information for New York State)
* Bringing Rex Home: A Veterinarian/Boarding Kennel's Right to Hold Your Pet Because of an Unpaid Bill in New York
* Access Rights of People with Disabilities and Their Service Animals
* Animal Fighting and Cruelty Cases in New York: A Guide for Judges, Prosecutors and Defense Counsel

Almost two decades have passed since New York City enacted the Pet Law (§§ 27-2009.1 of the Administrative Code of the City of New York) protecting pets and their guardians, during which time courts and agencies have resolved dozens of legal issues involving the rights of New York City apartment dwellers to keep companion animals.

At the outset, people should not be discouraged by clauses in their leases that appear to prohibit pets or to require written permission. Various laws, including the Pet Law and laws protecting people with disabilities, may override no-pet clauses in leases, rendering the no-pet clause unenforceable. And the no-pet clause itself is not always as prohibitive as it seems. Unfortunately, people are often not aware of the laws pertaining to tenants and their companion animals, and may unnecessarily, and painfully, give up their pets.

Sound legal advice obtained early in the course of events is essential; if it does become necessary for the pet guardian to go to court, the chances of winning the case with attorneys’ fees awarded are often good. Knowing some of the laws yourself will help. What follows is a summary of those laws.*

Question No. 1. What is the Pet Law?

In its plainest reading, the Pet Law provides that once a pet lives in a multiple dwelling (a building with three or more residential units) for three or more months, openly and notoriously (not hidden from the building’s owners, their agents, and on-site employees), then any no-pet clause in a lease is considered waived and unenforceable.1

The law applies in New York City. Westchester County has a similar law.2 New York City Housing Authority housing, which is not subject to the Pet Law but is subject to federal law concerning pets in housing,3 is discussed in Question No. 15. Pet guardians living in buildings with fewer than three units may have other defenses that were used by all pet guardians before the Pet Law was enacted. (See Question No. 13 for more details.)

The Pet Law applies in cooperative apartments.4 However, as to condominiums, because of conflicting decisions in the courts the Pet Law does apply to condominiums in Brooklyn, Queens and Staten Island, but does not apply to condominiums in Manhattan and the Bronx! Coops and condos will be discussed in more detail in Question No. 8.

Question No. 2: What does it mean to keep your pet openly and notoriously?

“Notorious” does not mean that your pet is an outlaw. As with much legal jargon, the words “open” and “notorious” have been interpreted by the courts, and have generally been held to mean visible and apparent, i.e., not hidden. Thus, in interpreting the Pet Law, most judges have tried to determine simply whether or not the pet was hidden in any active way.

For example, in Matter of Robinson v City of New York,5 the landlord argued that because Cindy Robinson’s small dog, Miss Muffy, was paper trained and did not go for regular walks, the dog was therefore not kept openly and notoriously. The court disagreed and found that a pet does not have to go for daily walks to be open and notorious. Any other rule, the court said:

"would lead to a conclusion that all small dogs or other animals whose masters elected to treat only as house pets could not have the benefit of the [Pet L]aw’s waiver even though they had been seen and noted by management personnel . . . such a reading is arbitrary and capricious also because it would seem to work most harshly against tenants who are house bound for one reason or another, such as age or disability, and who choose to have small dogs (or cats) as a companion without the need to walk them."

So, you can keep a house-bound pet openly, if you do not hide the pet. When building personnel come to your apartment for repairs or inspections, keep the pet, as well as evidence of the pet (e.g., toys and dishes), in plain sight, or where you normally keep them.

Question No. 3: In addition to keeping my pet openly for three months (i.e., not hiding my pet), am I also obliged to make certain that the actual owners and building agents have been told about him or her?

No. While you may need to make sure someone employed by or connected with the building sees your pet, it does not have to be the owner or managing agent.

In Seward v Cohen,6 an appellate court ruled that when building employees (even those employed as independent contractors) know of the pet, that starts the three months running. Thus, the actual owners or managers of the building do not need to know.

The court also said that just keeping your pet openly and notoriously for three months may also be sufficient to trigger a waiver regardless of whether any building personnel actually knew about the pet because, in that case, they should have known. It was also found by a court in Park Holding Co. v Tzeses7 that the statute was intended to create an either/or requirement -- either someone connected with the building knew about the pet for three or more months or the pet was simply kept openly for three or more months. However, a tenant would always have an easier time in court if he or she can prove that someone from the building actually knew about the pet. It may be useful to keep notes on when and where an employee or other agent of the owners or management observed (or should have observed) your pet, and who else was present at the time, to assist the court in determining if the building agents knew or should have known about the pet because of long-time open and notorious harboring of that pet.

Question No. 4. What if my landlord threatens that he or she will sue me for legal fees and evict me if I do not “get rid” of my pet?

You should not be intimidated by such tactics. You may have a very good case, and if you win, you may win legal fees. Don’t forget that, even if you do not prevail in the lower court, you can appeal. And in any case, even if you lose, the court will generally give you time to “cure” (e.g., place your pet in a good home) after the court renders a judgment. While in such an event you can lose legal fees, you will probably not lose your apartment if you comply with the court’s order to remove your pet. To be careful, you should contact a lawyer seasoned in this area the moment a claim arises.

Question 5. Can my landlord evict me if I timely remove my pet from my apartment after he or she sends me a notice demanding that I remove my pet within a specified period of time?

No. You complied with your lease obligations by curing as requested. You should keep in mind, however, that if you did have rights to keep your pet, you may very well have hurt them by removing your pet.

Question No. 6: Will the three-month period be extended if I enter into settlement talks with my landlord?

In one of the earlier cases under the Pet Law, it was ruled that if a landlord delays starting suit to remove your pet beyond the three month period because the landlord reasonably believes that there will be a settlement, then the three-month period may begin to run only after settlement talks end.8 However, a higher court subsequently ruled9 that this case should not be followed. Nonetheless, since settlement talks may still be detrimental to your rights under the Pet Law, it is best to consult a legal expert in this area as early as possible.

Similarly, if your landlord calls or writes to you about your pet, you should immediately consult an attorney. Save all letters and note the details of all discussions.

Question No. 7. When and how must the landlord start a legal action under the Pet Law?

Under the Pet Law, a landlord must actually commence a suit within the three-month period to enforce the landlord’s rights and not simply serve notice that he or she intends to bring suit.10 Commencement of a lawsuit means service of a “summons and complaint” or of a “notice of petition and petition.”

[Note -- As of September 2005, "commencement" occurs upon filing, rather than service, of the papers initiating a lawsuit in NYC Civil Court.]

One should be aware, however, that where the landlord’s suit is dismissed on technical grounds, such as improper service of legal papers, a new suit commenced by the landlord may be considered timely as long as the original one was.11

Question No. 8: Does the Pet Law apply to cooperatives and condominiums?

The Pet Law states that it applies to tenants with leases in multiple dwellings. People who live in cooperatives have proprietary leases. So, about a year after the Pet Law was enacted, the courts held that the Pet Law indeed does apply to cooperative buildings. In Corlear Gardens Housing Co., Inc. v Ramos,12 the court stated that “all tenants, including cooperative tenants, are in need of the protection of the Pet Law.”13 Thus, as long as the cooperative has three or more residential units, the Pet Law applies.

Condominiums present a different issue, because even though a condominium’s by-laws and rules can restrict pets much like a lease, there is no document entitled a “lease” between the unit owner and the condominium board. However, an Appellate Court covering Brooklyn, Queens, and Staten Island,14 has held that the Pet Law applies to condominiums, while the Appellate Division covering the Bronx, and Manhattan came to the opposite conclusion, ruling that the Pet Law does not apply to condominiums.15 Thus, for now, the application of the Pet Law to condominium owners will depend on where you live. Ironically, while a condominium owner may not be covered by the Pet Law, a person who is renting, or subletting, a condominium and is not the owner of the unit is subject to a lease agreement (even if oral) and will, therefore, most likely have the protection of the Pet Law.

Question No. 9: Am I allowed to get a new pet?

You may have been able to keep your first pet in your apartment but the time may come when your first pet is no longer with you and you realize that you want very much to have another pet, or that you wish to get an additional pet. Are you allowed by law to have one? Do the three months have to start all over again each time you get another pet?

Courts in New York had held for more than a decade that once the no pet clause is waived or found to be unenforceable for your pet, it could not be revived for a subsequent pet. Thus, the next pet had been regularly allowed, whether or not the three months had run a second time. However, the Appellate Term for Manhattan and the Bronx held in 1996 that the waiver of the clause for your first pet will not act as a waiver of the no-pet clause for your second pet.16 Thus, under current law, for people living in Manhattan and the Bronx, the three months has to run all over again for any new pet.

Question No. 10: For the Pet Law to apply, must I first prove my landlord’s bad faith motive, i.e., that my pet is being used by the landlord as an excuse to evict me?

No.

Throughout the history of the Pet Law, co-ops, condos, and landlords have argued that the Pet Law should be enforced only when there is proof that the building is retaliating against the tenant for some reason other than a real desire to remove the tenant’s pet. However, nothing in the statute requires such a reading. Indeed, New York already has a statute protecting tenants from retaliatory eviction.17

But most importantly, a court in Metropolitan Life Insurance v Friedman18 held that proof of a retaliatory motive is not required. The court stated:

"We reject plaintiff’s argument that the statutory three-month period is inapplicable absent the finding that a no-pet provision is being used as a pretext for a retaliatory eviction or some other bad faith motive."

Thus, if your landlord is retaliating against you for something you have the legal right to do (such as making a good faith complaint to a governmental authority) you may have an additional defense in an eviction proceeding, but you do not have to first prove this to win under the Pet Law.

Question No. 11. What happens if my pet is deemed a “nuisance?”

If your pet is a nuisance, the Pet Law will not help you. Thus, the landlord can bring a claim that your pet is a nuisance even after three months have passed. Your pet may be deemed a nuisance for substantially interfering with your neighbors’ use of their apartments (e.g., frequent urination or defecation in the hallway or lobby, constant barking, attacking other tenants, or strong, objectionable odors coming from your apartment). If many of your neighbors come to court complaining that their rights as tenants are substantially impaired by your pet’s behavior, then the court will generally find that your pet is indeed a nuisance. However, courts have held that an isolated incident (such as an occasional accident in the lobby) does not make your pet a nuisance.

If your pet is a nuisance, you should get the expert help of an animal behaviorist and/or a trainer who may be able to correct the problem. If your pet’s behavior changes quickly enough, a court may find that you need not lose your home or your pet.

Question No. 12: If I am disabled and have a companion and/or service animal, what are my rights?

In addition to any rights you have under the Pet Law, you may be protected by Federal, State and local laws allowing you to keep your animal.

Most people are aware that the law protects your right to keep a hearing assistance or seeing eye guide dog in your home. However, people with other disabilities who have a service animal are also protected. For example, New York Civil Rights Law § 47 provides that “no person shall be denied admittance to and/or the equal use of and enjoyment of any public facility solely because said person is a person with a disability and is accompanied by a guide dog, hearing dog, or a service dog.” This applies to housing and includes service dogs for a wide range of physical, mental and medical impairments. The law also covers service dogs living with a person while the dogs are in training. Federal19 and local laws also provide protection for persons with disabilities who have service animals.

Under the federal Fair Housing Act20 people with disabilities have been successful in arguing that, in certain circumstances, landlords must allow them to have a pet who provides them with emotional support as a reasonable accommodation.21 In this situation, the pet does not have to be qualified as a guide dog, hearing dog, or other type of service animal. Disabilities do not necessarily have to be physical and may include such conditions as depression. Therefore, if a pet is determined to be medically necessary by your health care provider, a court may hold that the pet must be permitted to live in your home with you. Similar rights may also exist under State and City law.

Here too it is important to get early legal counseling because a landlord must be advised of your disability and of your right to have an emotional support animal. If your landlord refuses to make a reasonable accommodation after being notified of your rights, relief can be sought in Federal and State courts or at the United States Department of Housing and Urban Development (HUD) Office of Fair Housing and Equal Opportunity Enforcement.

Question No. 13: What if I do not live in a building with three or more units and thus am not protected by the Pet Law?

In situations in which the Pet Law does not apply, there is still hope. First, the laws protecting the rights of people with disabilities apply regardless of the size of the building.

Also, since the laws of New York give a landlord the right to proceed summarily, (i.e., get a determination more quickly than in most courts,) this right is balanced with strict rules.22 Thus, even before the Pet Law was passed, courts held that if a lease does not clearly tell the tenant that he or she may be evicted for having a pet, the tenant can not be evicted on that ground.

Just as the lease clause must be abundantly clear, the predicate notice (i.e., the notice to cure or terminate that is usually required before a law suit may begin) must also be unequivocal, and a court may hold that the particular lease clause that is allegedly violated must be cited in the notice.

If rent is accepted after the termination date, but before commencement of the suit, the notice will be considered void and the landlord must start again.

New York law23 provides that a residential lease (or other consumer contract) that has printed type smaller than eight points or is unclear is not admissible in evidence. So, if the no-pet provision is visibly unclear, or the print is too small, then the landlord will not be able to place the lease in evidence to prove a case against a person harboring a pet.

Question No. 14: What may happen if I live in a building with three or more units but fewer than six units?

If you live in a building with three or more units but fewer than six units you are protected by the Pet Law, but your rights to renew your lease generally may be limited. If you live in such a building you should contact an attorney immediately if your landlord contacts you about your pet.

Question No. 15: What happens if I live in New York City Housing Authority housing?

Some 180,000 apartments owned and operated by the New York City Housing Authority (NYCHA) are exempt from the benefits of the Pet Law.

However, due to a new federal law24 allowing pets in federal housing under certain conditions, NYCHA has promulgated a pet policy which is currently allowing tenants to have one cat or one dog (who is not expected to weigh more than 40 pounds when fully grown). NYCHA is also allowing some pets who were already living in NYCHA housing when the new policy was enacted to stay.

Under the current pet policy, you will be required to register any cat or dog in your household and pay a one time non-refundable pet registration fee which will be waived for people in senior buildings and people with service animals. All cats and dogs over three months must be spayed or neutered and be vaccinated against rabies.

Also, all of the provisions protecting the rights of people with disabilities outlined in Question 12 are applicable in NYCHA apartments.

If you live in NYCHA apartment, and you are given a notice to appear before the building’s management or other agent because you have a pet, you should immediately contact an attorney. Do not go to management alone and without getting legal advice.

***********************************************IT CANNOT BE OVEREMPHASIZED that, regardless of the type of housing involved, legal advice from an expert in issues pertaining to animals should be obtained as soon as problems arise regarding your pet and before you are about to get a new apartment or pet. Sound legal counsel obtained early may prevent or minimize problems, whereas negotiating with management or owners yourself could have a detrimental effect on your case.

* This brochure is not offered as legal advice and should not be relied upon for particular matters without the independent advice of counsel qualified in these issues. The law in this area changes frequently, and the information provided herein may be out of date. For counsel you can contact the Legal Referral Service of the Association of the Bar of the City of New York and the New York County Lawyers’ Association or your local bar association or humane organization

This brochure was printed with the generous support of the American Society for the Prevention of Cruelty to Animals.

Footnotes:

1 Section 27-2009.1 of the New York City Administrative Code provides:

. . . “b. Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of the unit harbors, or has harbored a household pet or pets . . . and the owner or his or her agent has knowledge of this fact, and such owner fails within this three-month period to commence a summary proceeding or action to enforce the lease provision prohibiting the keeping of such household pet, such lease provision shall be deemed waived. . . . c. It shall be unlawful for an owner or his or her agent, by express terms or otherwise, to restrict a tenant’s rights as provided in this section. Any such restriction shall be unenforceable and deemed void as against public policy.”

[emphasis added]

2 Westchester County Law §695.01 et seq.

3 42 USC §1437z-3.

4 In Corlear Gardens Housing Co., Inc. v Ramos, 126 Misc 2d 416, 481 NYS2d 577 (Sup. Ct. Bronx Co. 1984), the court made three basic and crucial findings. First, the Pet Law did not violate the Urstadt Law, which “was not intended to place restrictions on a municipality other than with respect to rent control regulation. . . . The Urstadt law was passed by the legislature to restrict municipalities from enacting more stringent economic and rent controlled restrictions and in order to encourage the construction of new housing in the City of New York . . .”. Second, the court found that there was no reason to exclude cooperative owner-shareholders and tenants from the Pet Law. Last, the court found that the Pet Law was retroactive because it was remedial legislation. The court cited Garsen v Nimmo, NYLJ 2/14/84 p.14 col.4, 12 HCR 27B, which found that the Pet Law law was retroactive “in light of the law’s remedial purpose as expressed in the stated legislative declaration -- to wit that under the existence of the continued housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets . . . [and] to prevent potential hardship and dislocation of tenants within this city (See Gordon & Gordon v Madavin, Ltd., 108 Misc2d 349, affd 85 AD2d 937; Tegreh Realty Corp. v Joyce, 88 AD2d 820).” And apart from the above cases, the legislative declaration of the Pet Law states that “because household pets are kept for reasons of safety and companionship . . . it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and physical dislocation of tenants in this city” (New York City Admin. Code §27-2009.1).

“Section 27-2009.1: A landlord waives the right to enforce a no-pet clause by failing to commence suit within three months after learning of an animal’s presence. The waiver applies where landlord lacks actual knowledge but is chargeable with such knowledge by the tenant’s conduct, e.g., frequent goings and comings in view of building employees. [Note: the statute speaks of the tenant’s harboring the pet ‘openly and notoriously . . . and the owner or its agent hav[ing] knowledge of this fact’]. Thus, the defense is established even if tenant proves only constructive notice [citations omitted].”

8 In Park Holding v Lavigne, 130 Misc2d 396, 498 NYS2d 248 (App. Term, 1st Dept. 1985) the Appellate Term held that a belief that the matter was about to be settled allowed the landlord to refrain from instituting court proceedings, as long as the service of the notice to cure and notice to terminate had come within the three month period. However, subsequently, the Appellate Term, in Park Holding Co. v Tzeses, supra, and Arwin 74th Street Co. v Rekant, NYLJ 12/19/88 p.23, col.4 (App. Term 1st Dept.), affd 151 AD2d 1056 (1st Dept. 1989) held that an action or proceeding is “commenced” (for purposes of the Pet Law) by service of process of the actual lawsuit, which must be done within three months absent Lavigne circumstances and, most importantly, a higher court has since ruled that Park v Lavigne should not be followed. Seward v Cohen, supra.

9 Seward v Cohen, 287 AD2d 157, 734 NYS2d 42 (1st Dept. 2001).

10 In Arwin 74th Street Co. v Rekant, supra, the Appellate Division, First Department affirmed the Appellate Term’s holding that the failure to commence a suit, even where predicate notices have been served, will cause a waiver of any no pet provision to occur under the Pet Law.

11 See Baumrind v Fidelman, 183 AD2d 635, 584 NYS2d 545 (1st Dept. 1992). Justice Kupferman dissented and would have reversed for the reasons stated in the lower court ruling of Judge Mark H. Spires, i.e., that the failure to properly serve the papers commencing the proceeding within the three months causes a waiver under the Pet Law.

12 126 Misc2d 416, 481 NYS 2d 577 (Sup. Ct. Bronx Co. 1984).

13 126 Misc2d at 419, 481 NYS2d at 579.

14 In Board of Managers v Lamontanero (supra), the Appellate Division, Second Department stated: “The legal status of the occupant of a multiple dwelling unit (i.e., whether he pays rent, owns cooperative shares, or is the owner in fee simple of a condominium unit) is not relevant to the purposes of the statute, which include preventing abuses in the enforcement of covenants prohibiting the harboring of household pets and preventing the retaliatory eviction of pet owners for reasons unrelated to the creation of nuisance. “We conclude that it would be pernicious to create an exception for condominiums from the generally beneficial requirements of Article 27 of the Administrative Code [the Pet Law]. In addition to substantive harms, an exception for condominiums could lead to anomalies such as permitting the tenant of a condominium owner to invoke the protection of the ‘Pet Law,’ while the condominium owner himself could not.”

15 The Appellate Division, First Department, in Board of Managers of the Parkchester North Condominum v Nicholas Quiles, 234 AD2d 130, 651 NYS2d 36 (1st Dept. 1996) held that the Pet Law is not applicable to condominiums, reasoning that, by its terms, the Pet Law only applies where there is a landlord-tenant relationship and this is not true of condominiums. The court noted that the law refers only to “covenants contained in multiple dwelling leases and that condominums are a form of fee ownership.” The First Department expressly stated its disagreement with the Second Department: “We disagree with the Second Department that condominiums should be deemed covered by the Pet Law because not explicitly excluded.”

One curious note here is that, in Seward v Cohen, supra, the Appellate Division, First Department, cited Lamontanero to support the proposition that the exclusion of the NYC Housing Authority implies the inclusion of “all others” to explain its conclusion that co-ops were covered by the pet law.

16 Park Holding Co. v Emicke, 168 Misc2d 133, 646 NYS2d 434 (App. Term, 1st Dept. 1996). Prior to Emicke, several lower courts had held to the contrary. For example, in Brown v Johnson, 139 Misc.2d 195 (Civil Ct. NY Co. 1988) the court held that “it appears that the only reasonable reading of the statute is that failure to bring a proceeding constitutes a waiver of the clause in the future. The Section refers to a tenant who harbors or has harbored a household pet or pets. The inclusion of the past tense can only mean the reference to situations such as the one at bar” at 680. Similarly, in McCullum v Brotman, NYLJ 5/11/88, p.14, col. 4, the court held that once there is a waiver with the first pet, such waiver “is the relinquishment of a legal right. The courts have held that once a right has been waived, it cannot be revived to the detriment of a party who has relied on a waiver.” And the lower court in Park Holding Co. v Emicke, 167 Misc.2d 162 (Civil Ct. NY Co. 1995), rev’d 168 Misc.2d 133 (App. Term, 1st Dept. 1996) had held that once the waiver occurs, the no pet clause is waived not only for the current, but also for future pets. Finally, the Appellate Division, Second Department ruled in Megalopolis Prop. Assn. v Buvron, 110 AD2d 232, 494 NYS2d 14 (2d Dept. 1985), that once the three months passed, and no suit was commenced, then the “lease provision shall be deemed waived.” This appears to stand for the proposition that once the waiver has occurred, it is not to be taken away.

17 See Real Property Law §223-b, which prohibits landlords from commencing a suit to recover an apartment when they are retaliating against a good faith complaint by a tenant to a governmental authority, or for other actions taken in good faith to secure certain rights of a tenant. If this section is violated by the landlord, then a suit may not be maintained even if the three months have not expired.

If there’s one rule any resident at 407 Central Park West knows, it’s that no dogs are allowed.

So when Donald W. Reilly, a former Marine, returned home from the Gulf Coast after Hurricane Katrina in 2005 with a beagle puppy, several of his neighbors were surprised. Several told their co-op board representative, who demanded that his landlord take action. Letters were exchanged, with Mr. Reilly explaining his situation, but nothing happened.

His situation was this: He was disabled, living in a rent-stabilized apartment, and the dog was his emotional support. He had been living in the building since 1968, long before the building converted to a co-op, and he remembered the days when dogs were commonplace in the building. Even with the co-op rule, he did not think the pup would pose a problem.

But it did. And like many disputes among apartment dwellers, there were other issues: Some neighbors said Mr. Reilly was a problem, often sawing and doing loud work into the night. After several years of back-and-forth, Mr. Reilly received word that he would have to move out by Christmas Day 2008 or face eviction proceedings.

Rules were rules, the board said, but Mr. Reilly, 71, viewed the action as discrimination. Facing eviction, he and his lawyer filed a petition with the Department of Housing and Urban Development, asking that he be allowed to keep his beagle, P. T.

Last month, he won his case, along with $6,000 in lawyer’s fees from his landlord and the co-op board.

Mr. Reilly is among 25 to 50 residents every year who appeal to the agency, asking to keep a pet as an emotional support. Amendments to the federal Fair Housing Act of 1968 allow disabled people to keep service animals in their homes, no matter the building’s rules. Emotional support animals fall into that category.

Fifteen years ago, there were few petitions to keep emotional support animals. But that changed in the 2000s, said Jo-Ann Frey, the director of the Office of Fair Housing and Equal Opportunity, a division of HUD.

“We all know about having a guide dog, so that’s not a secret,” Ms. Frey said. “But emotional support animals are becoming more prevalent.”

Caring for animals forces tenants out of their pajamas and out of the building, she said. Mr. Reilly, for example, walks P. T. twice a day to Central Park, where he socializes with other dog owners.

Securing this allowance isn’t easy, however. Doctors are interviewed, and lawyers are hired to negotiate. Landlords are often reluctant, worried that if one tenant is allowed a pet, other residents will want one as well.

“They’re not on board with an emotional support animal because they see it as a way to get around a no-pet policy,” Ms. Frey said.

Mr. Reilly’s disability dates back to his days in the Marines, when he was found to have narcolepsy, a sleep disorder that caused him to fall asleep suddenly during the day for up to a minute. He was honorably discharged. He also has diabetes and high blood pressure. He takes 10 different medications a day.

When Hurricane Katrina hit in the summer of 2005, he signed up to volunteer with an emergency response team out of Battery Park City. He knew how to run small boats.

In the Gulf Coast, he discovered unimaginable devastation ­ and came upon four abandoned beagle puppies. Unable to resist their floppy ears and pleading eyes, he scooped them up.

He gave three away to military families and kept the quietest, whom he named Pierre Gustave Tonton Beauregard, for the Confederate general. (The general’s real name was Pierre Gustave Toutant Beauregard; in French, “tonton” is an affectionate term for uncle.)

When Mr. Reilly was given notice that he had to leave his apartment, he did what he did every day ­ he talked to fellow dog owners in Central Park. Someone suggested he contact Maddy Tarnofsky, one of three lawyers in New York who specialize in pet eviction cases.

Ms. Tarnofsky, too, lives in a rent-stabilized apartment on Central Park West with her dog, a Newfoundland named Maizie. (That’s short for Miss Mazeppa, one of the three strippers in the Broadway musical “Gypsy.”)

“If someone comes to me and says, ‘I’m depressed,’ I say, ‘Go out on the sidewalk in New York City ­ 9 out of 10 people are depressed,” Ms. Tarnofsky said. “There needs to be some connection made between the presence of the animal in the apartment and the management of the person’s condition. The presence of the animal will help them to cope with their symptoms.”

Ms. Tarnofsky believed that Mr. Reilly, who pays $700 a month for his one-bedroom at the back of the building, would win his case. Since she started specializing on pet cases, none of her clients has lost a pet. She has helped people with H.I.V. and cancer, and on two occasions, for couples who could not conceive.

She filed a complaint with the Fair Housing office after Mr. Reilly’s first court appearance on the eviction proceeding.

Janusz B. Sikora, the assistant secretary for the co-op board, said Mr. Reilly’s complaint took him by surprise.

“We didn’t want to push him out of the building whatsoever,” Mr. Sikora said.

As usual, there was more to the story than met the eye, and there were issues with Mr. Reilly beyond the dog.

“He thinks the law does not apply to him,” Mr. Sikora said. “He does renovations, and he does not ask the landlord. Tenants complain about sawing, hammering and alterations. You’re not supposed to make noises after 10 p.m.”

Mr. Reilly, for his part, would move if he could afford it. He would like a bigger apartment ­ at least one more room for an office ­ and friendlier neighbors. They’re just not the way they used to be, he said, before gentrification. Back then, they said more than a frigid hello in the elevator.

Cordial relations aside, Mr. Reilly isn’t planning on leaving. Nor is the dog. The settlement allows for Mr. Reilly to get another dog after P. T., so long as it isn’t one of a long list of large dogs.

“With him around, I pay attention to him and his needs ­ I don’t worry about getting embroiled in my situation,” Mr. Reilly said. “In that regard he keeps me sane, you know, instead of spending time sitting around all by myself worrying how I’m going to pay the rent.”

He looked at P. T., who looked away.

“I know you’re not dead,” Mr. Reilly said. He laughed.

“I’m glad he’s so funny, because laughing is wonderful,” he said. “I laugh a lot because he’s around.”

He paused. “It’s a drag to sink into the torpor of not being used. If no one in the world wants you, it does nasty things to yourself.”

Disputes under the "Pet Law"­about the right to keep animals in multiple dwellings­ are both ubiquitous and hard fought through motions, trials and appeals. Three such cases were decided by the Appellate Term, First Department, on Dec. 30, 2010. And last year saw many other cases determining the right to keep dogs in rental apartments and residential cooperatives and condominiums.

Barking Up the Legal Tree

The outcome of these cases is always singular and turns on the particular or peculiar facts involved; the governing lease; cooperative apartment or residential condominium documents; and the applicable local law. As discussed below, each of the cases involves a unique issue of contract or statutory interpretation.

Most cases involving alleged violations of multiple dwelling lease prohibitions against "harboring" household pets in apartments in New York City arise under the so-called "Pet Law" (New York City Administrative Code Section 27-2009.1). The code proscribes the enforcement of such restrictions, and deems the provision waived, "[w]here a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets" and the "owner fails within th[e] three month period to commence a summary proceeding or action to enforce" such lease provision. The "waiver" provision does not apply where the household pet "creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure."

Threshold issues regularly arise concerning whether the apartment is a covered multiple dwelling; whether a unit in a multiple dwelling is exempt from coverage; whether the "harboring" was "open and notorious"; whether waiver of the clause is trumped by a claim of nuisance; and whether the pet is a "service animal" protected by federal, state or local law.

Recent 'Pet' Peeve Litigation

In 86 W. Corp. v. Singh, 2010 NY Slip Op 52265(U) (App. Term 1st Dept. Dec. 30, 2010), Appellate Term, First Department, sustained the trial court's finding that the tenants breached a substantial obligation of their lease by failing to comply with certain dog "leashing" requirements; and rejected the tenant's argument that the breach of the lease was de minimus.

New York City Civil Court afforded the tenants an opportunity to cure by removing the two pet dogs. However, Appellate Term found that "the potential cure the trial court afforded tenants…was inappropriate" because "the pets [had] been registered and certified as service dogs for tenants by the New York City Department of Health and Mental Hygiene [and] did not create a nuisance condition." Accordingly, in order "to avoid the needless and unwarranted forfeiture of a dwelling…the appropriate cure was to require tenants to comply with the leashing requirements." Appellate Term permanently stayed execution of the warrant of eviction "on condition that tenants continue to comply with the leashing requirements."

3720 Homes Inc. v. Hyman, 2010 NY Slip Op 20527 (App. Term. 1st Dept. Dec. 30, 2010), was based upon allegations that tenants violated house rules and their cooperative apartment proprietary lease by having "'kept or harbored'" a dog in the cooperative apartment premises. Tenants asserted that the dog­ -- a Maltese named 'Rocky'­ -- was "owned by their adult daughter and reside[d] in her nearby apartment, and that the dog merely 'visits' tenants in the subject apartment at unspecified times and unstated intervals."

Civil Court denied the tenants' motion to dismiss the holdover petition. Appellate Term, First Department, affirmed, noting "broad, unparticularized allegations, lacking evidentiary detail as to the nature and extent of the dog's presence in tenants' apartment or its schedule of supposed visits, fell far short of meeting tenants' burden to eliminate all triable issues as to whether they kept or harbored the dog in violation of the proprietary lease terms." To the contrary, the court found that tenants' "factual averments…acknowledging that the dog is generally walked 'three times a day while visiting tenants…actually tend to support a finding that the dog's visits are regular and reoccurring, and thus buttress the landlord's contention that tenants materially breached the no-pet provisions of the proprietary lease."

The Hyman court decision turned on the meaning of the provision of the proprietary lease prohibiting tenants from keeping or harboring animals in their apartments. The court noted, "Had the parties intended to limit the definitional reach of the terms 'kept or harbored' to those animals who reside with and/or are owned by tenants, they could have included specific language to that fact in the proprietary lease agreement." Accordingly, the court's "inquiry [was] more properly focused on whether the dog's presence in tenants' apartment is sufficiently frequent and substantial" as to establish that the Hymans "kept" or "harbored" the dog as those terms are ordinarily used, i.e.. whether tenants possessed or had the care of the animal or had it in their keeping.

In addition to concluding that "[p]roper resolution of [the] fact-laden issue must await further evidentiary development at trial," the Hyman court also noted two other issues that remained to be resolved: first, whether the landlord timely commenced the eviction under the three-month rule of the administrative code; and second, whether the dog, if kept or harbored in tenants' apartment as alleged, "was an emotional support or service animal necessary to accommodate any disability that tenant Rita Hyman may be made to suffer."

Parenthetically and particularly unusual for decisions at Appellate Term, in Hyman Presiding Justice Douglas E. McKeon vigorously disagreed in a lengthy dissent holding that: "I do not believe that there are factual issues warranting a trial and would award summary judgment to the [tenants] since they have established by documentary evidence and affidavits that the subject premises is a pet friendly building, and that the dog which tenants are alleged to be harboring…actually resides with and is owned by their daughter[.]" The dissent also noted that: "The fundamental flaw in landlord's position is that it ignores that the word 'harbor,' as typically used in residential leases through the metropolitan area and in the 'Pet Law,' has been judicially construed to describe an animal which either resides in the tenant's household…or is owned by the tenant…, not an animal who visits a tenant, nor the tenant who permits the visit."

200 Assoc., LLC v. Haupt, 2010 NY Slip Op 52271(U) (App. Term 1st Dept. Dec. 30, 2010), involved an appeal, after submission on stipulated facts, from a New York City Civil Court judgment in a summary (holdover) proceeding awarding possession to the landlord. Tenant had conceded in the stipulated facts that "(1) she harbored two dogs in violation of the 'no-pet' clause in the parties' lease; (2) this holdover proceeding was timely commenced under Administrative Code…; and (3) her 'disability discrimination' defense has been waived."

Appellate Term, First Department, found that the tenant's proposed affirmative defense that the "no-pet clause" was unconscionable was "palpably insufficient or patently devoid of merit," and in light of "the particular facts" of the case, stayed issuance of the warrant of eviction for 60 days "so that tenant may cure the breach of the lease," presumably by removing the pet from the apartment.

Civil Court in Marvits, however, denied the tenant's application for attorney's fees. On appeal, Appellate Term, First Department, held that "[t]enant's ultimate success on her Pet Law waiver defense…warrants an award of attorneys' fees in her favor pursuant to the governing lease agreement and the reciprocal provisions of Real Property Law §234."

Boards and Associations

Granada Condominium III Association v. Palomino, 78 A.D.3d 996, 2010 WL 4793102, 2010 NY Slip Op. 08699 (2d Dept.), concerned the applicability of Westchester County's Pet Law to condominiums and their unit owners. Palomino was an action by a condominium association against a unit owner for violating the condominium's rule prohibiting unit owners from harboring pets that regularly frequent the outside of the unit. The complex was located in Nanuet. Supreme Court, Westchester County, granted defendant-tenant's motion to dismiss the complaint. The Second Department reversed.

The Appellate Division held that Supreme Court erred in determining that the Westchester County "Pet Law" applied to condominiums and their unit owners. The Second Department determined that the "plain and unambiguous language" of the Westchester County law expressly provides that it applies to tenants "in a multiple dwelling" and that "its protections extend only to tenants governed by leases Including proprietary leases in cooperatives." Accordingly, the Appellate Division drew an "irrefutable inference…that the omission of condominiums and condominium owners was so intended by the Westchester County Legislature."

Petitioners in Backman v. Kleidman, 27 Misc.3d 1215(A), 910 N.Y.S.2d 760, 2010 WL 1712245 (N.Y. City Civ. Ct.), were owners and landlords of a penthouse condominium; and respondent was their tenant under a lease that provided that the tenant "may not keep any pets in the apartment." Tenant kept a cat in his apartment; the unit owners/landlords served a notice to cure, and a special proceeding followed based upon the tenant's alleged failure to comply with the cure notice.

Tenant in Kleidman moved for summary judgment on the ground that the owners/landlords waived their right to enforce the no-pet provision of the parties' lease by not objecting to the existence of the pet within three months of the owner or agent learning about the pet's existence.

The Kleidman court held that the Pet Law does not apply if a condominium board waives a no-pet clause against a unit's fee owner. However, the court also held that the law does apply if the fee owner enforces such a clause against a tenant.

On the merits in Kleidman, it was undisputed that "the on-site building supervisor/superintendent…knew that respondent kept a cat in his dwelling for more than three months before [the] proceeding began"; however, petitioner argued "that any knowledge by the condominium's superintendent about the existence of a cat belonging to respondent cannot be imputed to petitioners for the purpose of effecting a waiver of the Pet Law."

New York City Civil Court denied cross-motions for summary judgment "because an issue of fact arises about petitioners' relationship with…the building supervisor/superintendent, and petitioners' relationship with the board of managers [such that the court could not] determine from the parties' papers whether a principal-agent relationship existed between [the building supervisor/superintendent] and the petitioners"­concluding "if that relationship did exist, the Pet Law applies, and petitioners might have waived their right to evict respondent under the parties' lease."

In Board of Managers of Village View Condominium v. Forman, 78 A.D.3d 3d 627, 911 N.Y.S.2d 378 (2d Dept. 2010), the board of managers of a condominium complex filed an action against a unit owner seeking a declaratory judgment that the unit owner was in violation of the condominium's declaration, bylaws and house rules. Supreme Court, Queens County, granted judgment in favor of the condominium, and the unit owner appealed.

The condominium's bylaws did not include any restrictions on pet ownership and stated that unit owners "and their pets" shall not disturb the other unit owners. However, House Rule No. 1, promulgated by the board, stated that: "Positively no pets are allowed in the building for any reason" [boldface in original]. Based on the rule, the board demanded that defendant remove her small (four-pound) dog from the premises (purchased after a previous dog had died). When the unit owner refused to do so, litigation ensued.

After a lengthy discussion of condominium ownership, in general, and the bylaws of the subject condominium, in particular, the Second Department rejected the board's position that it could amend the bylaws at will to ban pets in the complex, and that, in order to do so, such an amendment to the bylaws would require approval of 80 percent of the unit owners at a duly noticed meeting. Accordingly, the court declared House Rule No. 1, completely banning pets from the condominium, to be invalid and declared that the board was not entitled to enforce that rule.

Lessons Learned

When representing a prospective residential tenant or purchaser of a cooperative apartment or condominium unit, find out whether your client has or wants a pet or expects to live in a pet-free building­ -- and then determine:

• Does the building permit or prohibit pets; and, even if pets are permitted, are there any restrictions that apply (number or size of pets etc.)?

• The rules of the building one way or the other notwithstanding, are there any applicable or governing laws, rules or regulations that trump the building-centric rules?

• Are the rules of record enforced by management (i.e., a building rule prohibiting pets may be waived)?

• Were the residential cooperative or condominium rules (if any) properly enacted or are they subject to legal challenge?

• Has there been any litigation, or is any litigation pending or threatened, about the right to exclude or harbor pets?

When representing a rental apartment building owner or a residential condominium or cooperative that prohibits pets:

• Periodically post the rules in the lobby, elevators and common rooms.

• Instruct the doormen, concierges, superintendents or other building staff to report, and to keep a log of, pets regularly seen in or around the building.

• Advise the owner or board promptly to notice the harboring of pets -- ­and that "Pet Law" proceedings must be commenced within three months, failing which the objection is waived.

• Remind the owner or board that claims that a dog or cat is a "service animal" must be documented by the tenant within the three-month period.

The underlying summary holdover proceeding was commenced by CENTRAL HARLEM ASSOCIATES LLC (Petitioner) against GERTRUDE DAVIS (Respondent) seeking to regain possession of 210 West 146th Street — Apt 3-K, New York, New York 10039 (Subject Premises) based on the allegations that Respondent, the rent-stabilized tenant of record, has breached her lease by harboring a dog in the Subject Premises.

PROCEDURAL HISTORY

Petitioner issued a Ten Day Notice to Cure dated August 19, 2014. The Notice alleged that Respondent was violating paragraph 11 and rule 9B of her lease agreement, by keeping a dog in the Subject Premises without the written permission of Petitioner, and that Respondent held a dog party in the yard of the Subject Building on Saturday July 26, 2014. The Notice provided that Respondent was to cure the violation by September 5, 2014. The Notice was served by certified and first class mail on August 21, 2014.

Petitioner issued a notice of termination dated September 16, 2014, asserting that the dog remained in the Subject Premises and terminating Respondent's tenancy as of September 30, 2014. The notice was served on September 16, 2014 by certified and first class mail.

The petition is dated October 13, 2014, and the proceeding was initially returnable October 27, 2014. The notice of petition and petition were served by conspicuous place delivery on October 21, 2014, with a subsequent mailing on October 22, 2014. Proof of service was filed with the Notice of Petition on October 22, 2014.

On January 14, 2015, the proceeding was assigned to Part L for trial.

Petitioner agreed on the record prior to the commencement of trial that Respondent could amend her deemed general denial to assert two affirmative defenses. Respondent asserted that she had the dog for over 90 days prior to the commencement of this proceeding, and that she should be afforded the right to keep the dog as a service dog as a reasonable accommodation for her alleged disability.

The trial commenced on the 14th and continued and concluded on January 15, 2015, and the court reserved decision.

FINDINGS OF FACT

Respondent is the tenant of record of the Subject Premises, pursuant to an original lease dated February 2, 1994 (Ex 1). Petitioner is the current landlord of the Subject Premises, pursuant to the most recent renewal dated February 1, 2013 (Ex 2). Rule 9 of Respondent's original lease agreement provides that dogs may not be kept in the Subject Premises absent the owner's written consent.

On or about September 16, 2013, Respondent got a dog, Dutchess a Yorkshire Terrier.

Respondent brought Dutchess for her first doctor's visit on September 16, 2013 (Exs D & E-3). Dutchess has been openly and notoriously kept by Respondent in the Subject Premises since that date. From September through December 2013, Dutchess was not walked, but was carried in and out of the Subject Building. From January 2014 forward, Ducthess was walked in and out of the building twice a day. On Mondays through Fridays, Dutchess was typically walked by Respondent at 4:30 pm and at 7 pm.

Respondent's testimony that the building Super, Michael Lloyd, consistently saw the dog, knew the dog by name and was aware that the dog belonged to Respondent was credible and uncontested by Petitioner.

Respondent treats Dutchess like her own child. Dutchess is often dressed up and always on a leash when walked. Photos of Dutchess in the common areas of the building on various dates in all different outfits, and with different bows for her hair were admitted into evidence (Ex A).

Other witnesses credibly testified on Respondent's behalf that Dutchess was frequently seen in front of the Subject Building and coming in and out of the building, when being walked by Respondent.

There is a security guard stationed in the lobby of the building on weekends.

There are cameras in the lobby and elevator of the Subject Building.

Petitioner's sole witness at trial was Mitchell Britton (Britton), a security director for the Subject Building. Britton testified that the cameras in the public areas of the building have been in place since June 2014. There are only 43 units in the building. Britton can access the camera footage at any time on his phone and maintains a regular presence at the building since July 2014. Britton regularly reviews footage from the cameras two to three times a week. Both Britton and the Security Guards regularly patrol the common areas of the subject building.

Petitioner not only failed to call the Super as a rebuttal witness, Petitioner failed to call a single witness that had any knowledge of what took place in the building prior to June 2014.

On July 26, 2014, Respondent had a birthday party for Dutchess in the backyard of the building, which was attended by other dogs and residents of the building. There were elaborate decorations, presents and a birthday cake.1

DISCUSSION

Respondent failed to offer any admissible evidence in support of her claim that Dutchess is a support animal. That affirmative defense is dismissed. Respondent did however, meet her burden of establishing that she openly and notoriously had Dutchess in the Subject Premises for well over 90 days prior to the commencement of the proceeding.

The Administrative Code of the City of New York §27-2009.1 (b) provides in pertinent part:

Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets…and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.

In Seward Park Housing Corp v. Cohen (287 AD2d 157) the court in interpreting this provision held that it "… shows a legislative intention to presume knowledge on the part of the landlord. In this ordinance, proof of 'openly and notoriously' harboring of the pet in the apartment for 'three months or more' raises a presumption of knowledge by the owner or his managing agent of this fact (Id at 164, citations omitted)."

Respondent established that she openly and notoriously harbored the dog from September 16, 2013 forward. This along with Respondent's unrebutted testimony of the actual knowledge of the building superintendent establishes that Petitioner had actual or constructive knowledge that Respondent had a dog for nearly one year prior to the commencement of this proceeding.

Based on the foregoing, the petition is dismissed.

This constitutes the decision and order of this court.2

Dated: January 14, 2015

New York, New York

1. The court notes that the elaborate birthday party on July 26, 2014, was 88 days prior to the service of the notice of petition and petition and the commencement of this proceeding.

2. Parties may pick up their exhibits from the courthouse, in the clerk's office in the second floor, window 9, within thirty days of receipt of this decision. After said date the documents may be destroyed in accordance with administrative directives.

The Tenant Network(tm) for Residential Tenants Information from TenantNet is from experienced non-attorney tenant activists and is not considered legal advice.Subscribe to our Twitter Feed @TenantNet

DECISION/ORDER AFTER TRIAL [1]Petitioner commenced this summary holdover proceeding alleging that respondent, Shirley Randolph, violated her lease by having a dog in her condominium unit. The petition also alleged that this dog disrupts the peace and quiet enjoyment of her neighbors. Respondent retained counsel and interposed an amended answer which included the defense of waiver (See N.Y.C. Admin Code §27-2009.1(b).) Pursuant to an order dated June 23, 2014, petitioner withdrew any claims relating to nuisance. The court conducted a trial regarding the allegations of the petition and respondent's defense of waiver.

Trial testimony

Respondent consented to petitioner's prima facie case. Petitioner entered several documents into evidence, including the deed evidencing petitioner's ownership of the subject building[2] the original lease dated September 24, 1974, listing Anna Randolph as tenant[3]; the first renewal lease listing respondent,[4] and the current rent stabilized lease between the parties.[5]

Indeed, ¶9 of the "Rules and Regulations" listed following ¶39 of the lease states, "[n]o dogs, cats or other animals shall be kept or harbored in the demised premises."[6] In addition, petitioner introduced two incident reports evidencing petitioner's confirmation of a man with a black and white dog-once in the subject unit, and once walking into the subject building.[7]

Shirley Randolph testified she has lived in the subject unit for forty years and described petitioner's building as "the greatest place to live." She lives with Harvey Hankins and an 8 or 9 pound Chihuahua by the name of "Eljay." Ms. Randolph is a cancer survivor, and got Eljay in the spring of 2010 for a companion. She produced records from Throgs Neck Animal Hospital which show treatment of Eljay for the time period of December 20, 2012 through September 30, 2013. Ms. Randolph's daily routine includes a morning and evening walk with Eljay, unless it rains. Ms. Randolph testified that she walks Eljay through the cul de sac by St. Raymond's School, or Metropolitan Avenue or the oval in back of the building. In order to go on walks, she would have to go onto the elevator with Eljay, walk through the lobby and exit through the front door.

Ms. Randolph credibly testified that everyone in the building knows Eljay, and ask where he is if Eljay is not present. Ms. Randolph identified a porter/serviceman by the name of Darryl, 5'6" or 5'7", African American, late 30s, and described him as a jokester who does regular maintenance on her floor starting at 7:00 or 8:00 in the morning. Ms. Randolph testified that she has seen Darryl for the last one and one-half to two years, while she or Mr. Hankins is with Eljay. Ms. Randolph explained that Eljay stays in a doggie bed in the bedroom, and that he lays on the carpet near the door when she cooks. Ms. Randolph explained that when you walk in the front door of the apartment, Eljay's food bowl is there. According to Ms. Randolph, Eljay will bark if the doorbell rings or a stranger arrives.

Ms. Randolph stated that there were 2 or 3 gas leaks that petitioner responded to immediately. Ms. Randolph said she called petitioner, that the service department, security and an inspector from petitioner came to the apartment. She explained that during one of the gas leaks, either in 2011 or 2012, a repairman came to the apartment and played with Eljay.

On cross-examination, Ms. Randolph admitted she did not notify petitioner when she obtained Eljay or when she brought Eljay to Throgs Neck Animal Hospital in December 2012. She expanded on her description of the grounds accompanying the subject building, and admitted that there are no gates that define the complex. She also admitted that the city streets run through the grounds. She described Parkchester like a maze, with Metropolitan Avenue running East to West through Parkchester and Tremont Avenues running parallel to Metropolitan Avenue. Ms. Randolph said she walks Eljay along the cul de sac off of Metropolitan Avenue. She stated that the first intersection near the subject building is Metropolitan Avenue and Odell Street; she acknowledged cars traverse those streets, people walk on them, and these pedestrians and drivers don't necessarily live in Parkchester.

When asked when the repairman who allegedly repaired the gas leak played with Eljay, Ms. Randolph said months to a year. In reference to the notice of violation of regulations issued by petitioner on September 30, 2013, and the Environmental Control Board Notice of Violation and Hearing issued that same day, Ms. Randolph explained she discussed with a lady from management that she had the dog for awhile. (Ms. Randolph described the woman as Caucasian, late 20s to early 30s, wore glasses, Irish, a "nice lady.") On redirect, Ms. Randolph claimed to have walked Eljay in full view of petitioner's surveillance cameras repeatedly. None of the surveillance footage was produced for the trial.

Harvey Hankins credibly testified on behalf of respondent. He first explained that he has lived in the subject unit for thirty years, then said he "visits" more than "lives". He testified that Eljay has lived in the subject unit since 2010. He stated Eljay's daily routine is a walk in the morning, a feeding, and an evening feeding. He said there is a maintenance person who sees Eljay every other day and described that person as "Darryl," a man approximately 5'5" with a stocky building who has worked at Parkchester for about 2 years. He recalled when the summons was issued on September 30, 2013 when Eljay did not have his tags. On cross-examination, he confirmed that Eljay always stays in the subject unit.

Craig Harrigan credibly testified on behalf of respondent. He lives in another building in the Parkchester complex two buildings away and around the corner from the subject building. Mr. Harrigan could not recall Eljay's name, but stated he knew Ms. Randolph had a dog for three or four years. In particular, Mr. Harrigan said he has seen Eljay being walked from St. Raymond's Elementary School to St. Raymond's High School, as well as from East Tremont Street to St. Raymond's Street. Mr. Harrigan testified that he saw staff of petitioner on the grounds including a lady with dreadlocks as well as a Spanish lady in Parkchester Security clothes. He claimed that he saw them almost everyday, around Odell St. to St. Raymond Avenue and the whole side of Parkchester that he lives on from St. Raymond Avenue to East Tremont Avenue.

On cross-examination, Mr. Harrigan acknowledged that the Parkchester complex contains many buildings and abuts public streets. He also stated that there are no gates separating Parkchester complex from other city streets. For instance, he said it was fair to say that Odell Street is on the "city side" of the complex. He also acknowledged that, if in a car, someone can turn into Parkchester from a city street.

Parkchester called Security Officer Maria Melendez on rebuttal. She is a special patrolman who can issue summons, make arrests and engage in similar activities as a police officer but does not carry a weapon. She has worked at Parkchester for two years. On September 30, 2013, Special Patrolman Melendez saw Mr. Hankins walking a dog on the Parkchester grounds. Mindful of the "no pet" policy, and noticing the dog did not have a license, she called dispatch to discern if Mr. Hankins was on the "dog list" awaiting permission to have the dog on grounds. She wrote the Notice of Violation of Regulations regarding Mr. Hankins' having a dog.[8] When asked if she knew Mr. Hankins lived in Parkchester, Special Patrolman Melendez explained that his residency didn't matter; rather, if a person is on Parkchester property with a dog, she asks for identification. Special Patrolman Melendez confirmed that there are no barriers separating the Parkchester complex from other city streets. During her testimony, a schematic of the petitioner's grounds was introduced into evidence.[9] This schematic confirmed that New York City public streets run through the grounds of the complex in which the building is located.

On cross-examination, Special Patrolman Melendez reiterated it was general protocol to stop anyone on the Parkchester grounds with a dog. She explained she was certified as a Peace Officer by New York City, but paid by, and an employee of, Parkchester. She said her paychecks are issued by Parkchester Management Preservation.

Petitioner then called Community Affairs Officer Eleanor Sullivan. She has worked for Parkchester Public Safety for approximately four and one-half years. She issued an Environmental Control Board ("ECB") violation on September 30, 2013 to Harvey Hankins, when she observed him with a dog without a license. She explained that the ECB violation is issued on behalf of the City of New York. Officer Sullivan said Mr. Hankins explained he had left the license at home, and that she told Mr. Hankins that he could bring the license to ECB court. Officer Sullivan stated she found Mr. Hankins with the dog on Parkchester grounds. She noted a sign is posted warning that dogs are not allowed. She said there are park-like areas inside Parkchester. Officer Sullivan explained that at the time she issued the ECB violation, chains covered grass areas on the Parkchester grounds.

Lin Alvarez then testified. He has been a plumber for Parkchester for seventeen years. When shown a work order dated July 6, 2012, at 1:51pm,[10] listing plumbing repair at the subject unit, Mr. Alvarez stated he could not remember that particular job or being in the subject apartment. When asked if it was his signature on the work order, he hesitated. His testimony was of little value since he could not remember respondent or any work done in her apartment.

Petitioner then called Mamady Kone to the stand. He wore a Parkchester uniform, and testified he has worked as a handyman for Parkchester for eight years. When questioned about a work order dated July 6, 2012, at 11:42am,[11] listing work done to the gas and gas valve at the subject unit, Mr. Kone stated he could not remember being in the unit. He acknowledged signing the work order. On cross-examination, he said he is not required to notify Parkchester if he knows of a dog in the unit.

Petitioner finally called Darryl Lawrence. Mr. Lawrence has been a groundskeeper/porter for Parkchester for approximately twenty-eight months. He is familiar with Ms. Randolph, Mr. Hankins and Eljay. He came to know about Eljay approximately six months after he started working at the building. He stated that he reported the presence of the dog to security. When asked about his requirement to report the presence of the dog, he stated the dog "had to be reported at the time."

Analysis

Pursuant to New York City Administrative Code §27-2009.1(b):

Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the multiple dwelling law, the housing maintenance or the health codes of the city of New York or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived…

Petitioner argues that this ordinance does not apply to condominiums, citing Board of Managers of the Parkchester North Condomium v. Quiles, (234 AD2d 130 [1st Dept 1996]). However, the language quoted by petitioner undermines is own position:

We agree that the Pet Law (Administrative Code of City of NY §27-2009.1[a], which refers only to "covenants contained in multiple dwelling leases", is not applicable to condominiums, which are a form of fee ownership[citation omitted].

(Id., 234 AD2d at 130.) Thus, the ordinance does not apply to a fee owner. However, respondent is a renter/leaseholder, and thus the exception cite in Quiles does not apply. (See also Backman v. Kleidman, 27 Misc3d 1215(A) [Civ Ct, NY County 2010], noting that Quiles as well as Board of Managers of Suffolk Homes Condominium v. Cheng, 21 Misc3d 1145(A) [Sup Ct, NY County 2008] stand for the proposition that in the First Department, the Pet Law does not apply if a condominium board is enforcing no-pet clause against a unit's fee owner.)

Turning to the waiver argument, "[W]aiver is the voluntary abandonment or relinquishment of a known right, which, except for such waiver, the party would have enjoyed." (Dice v. Inwood Hills Condominium, 237 AD2d 403, 404 [2nd Dept 1997] quoting P&D Cards & Gifts v. Matejka, 150 AD2d 660, 662.) In the case of knowledge by the owner of the presence of a dog for purposes of Administrative Code of the City of NY 27-2009.1[a]:

Actual knowledge is, of course, sufficient. Where, however, there has been no actual knowledge, it can be shown that the possession or use was so open, notorious and visible as to support an inference that the owner must or should have known of it. Knowledge can be either actual or imputed. (2 NY Jur2d, Adverse Possession, §44). (Seward Park Hous. Corp. v. Cohen, 287 AD2d 157, 164 [1st Dept 2001].)

In this case, Mr. Lawrence, a groundskeeper/porter, stated he knew of Eljay's presence six months after he started working at the subject building. Since he stated he had worked at the subject building for two years or twenty-eight months, that would place his knowledge of the dog at May 2012 (twenty-eight months before testifying) or November 2012 (two years before testifying). The notice to cure was issued October 17, 2013. Thus, far beyond the three month period stated in the New York City Administrative Code §27-2009.1(b) which provides that any lease provision prohibiting a pet shall be deemed waived if an action or proceeding is not commenced during that time. Thus, the waiver provision of §27-2009.1(b) applies. Moreover, contrary to petitioner's argument in its post-trial brief, Mr. Lawrence stated he had an obligation to report the dog. Furthermore, Mr. Lawrence stated he reported the dog to petitioner's security staff. Even if Mr. Lawrence did not have a duty to report the dog, this lack of duty does not prevent tolling of the three month period stated in §27-2009.1(b). In fact, in 1725 York Venture v. Block (64 AD3d 495 [1st Dept 2009]], explaining that in Seward Park:

We rejected the landlord's narrow interpretation of the term "agent" and the landlord's reliance on the fact that neither it nor the managing agent required the building personnel to report animals, which would have allowed the landlord to turn a "blind eye" to a tenant's open and notorious harboring of a pet and would have thwarted the statute's remedial purposes (see Seward Park Hous. Corp. v. Cohen, 287 AD2d 157 at 165-168, 734 NYS2d 42 (1725 York Venture v. Block, 64 AD3d at 496.)

In addition to the actual knowledge of Mr. Lawrence, petitioner had imputed knowledge from respondent's open and notorious displaying of the dog. As stated in 184 West 10th Street Corp v. Marvits, (59 AD3d 287 [1st Dept 2009]), the Appellate Division, First Department held tenant:

met her burden of demonstrating that she harbored her two cats 'openly and notoriously' by showing that she kept the cats and their effects in an open manner, as any cat owner ordinarily would do, without hiding them from the landlord or his agents. In particular, the presence of the cats' litter box in the bathroom was an unmistakable indicium of cat ownership. (184 West 10th Street Corp v. Marvits, 59 AD3d 287, 288.)

The Appellate Division continued:

The building contractor retained by petitioner to perform schedule minor repairs was the type of long-term independent contractor who serves as an agent for purposes of imputing knowledge to the landlord under the Pet Law (Seward Park Housing Corp. v. Cohen, 287 AD2d 157, 166 [2001].)

(184 West 10th Street Corp v. Marvits, 59 AD3d at 288.)

In the present case, Ms. Randolph has made such a showing of imputed knowledge. She credibly testified that Eljay's food bowl is in plain view immediately upon entering the apartment. Mamady Kone, petitioner's handyman, admitted signing a work order dated July 6, 2012 and having been present in the subject unit. His presence in the apartment in view of the Eljay's bowl as well as his presence and responsive barking is the type of open and notorious presence of a pet which substantiates a finding of imputed knowledge.

Ms. Randolph arguably made another showing of imputed knowledge by testifying about Eljay's presence on the grounds where the subject building is located. For instance, in 111 East 88th Partners v. Reich, (2002 NY Slip Op 50007(U) [App Term, 1st Dept 2002]), the Appellate Term, First Department held a tenant made a showing of open and notorious care of a dog by "walking it at least three times a day in open view of the building's 24 hour door personnel and other employees." Also, in Seward Park Hous. Corp. v. Cohen, (287 AD2d 157, supra), the Appellate Division, First Department found a tenant proved open and notorious maintenance of a dog by showing tenant walked their dog three times a day "in and about the building, in the cooperative's yards during normal hours" and that "security guards, maintenance workers and porters at the building, on a daily basis, saw" the dog, "petted" the dog and "played with it." (Seward Park Hous. Corp. v. Cohen, 287 AD2d 157, 159-160.) In the present case, respondent and Mr. Hankins testified to the daily walking of Eljay in and about the building and grounds of the complex where the building is located. The neighbor, Mr. Harrigan, stated he knew Ms. Randolph had a dog for three or four years and saw her walking Eljay. Petitioner makes a valid point that since the grounds of the subject complex are interspersed with city streets that petitioner's agents would not necessarily know a dog on the grounds is owned by a tenant of petitioner. However, as explained above, respondent has already demonstrated actual and imputed knowledge by petitioner. Therefore, petitioner has waived its right to enforce the lease provision forbidding respondent keeping a dog at the subject premises pursuant to New York City Administrative Code §27-2009.1(b).

12. Parties may pick up trial exhibits with thirty days of the date of this decision from Part T, Room 8th Floor. After thirty days, the exhibits may be shredded in accordance with administrative directives.

The Tenant Network(tm) for Residential Tenants Information from TenantNet is from experienced non-attorney tenant activists and is not considered legal advice.Subscribe to our Twitter Feed @TenantNet

Dog Is Only a Visitor, Judge Rules; Tenants Can Keep ApartmentAndrew Keshner, New York Law JournalSeptember 16, 2015

Tenants in a Bronx apartment did not violate their lease's prohibition against keeping pets, a judge has ruled.

"Cookie," the Pomeranian, was only visiting, Bronx Housing Court Judge Javier Vargas concluded, finding, "It cannot be said that tenants harbored the dog at the premises other than for her visits on periodic occasions."

Vargas rejected the landlord's bid for issuance of a judgment of possession against the tenants and dismissed the case, Anderson Housing Associates v. Gonzalez, L&T 060155/2013.

In the summer of 2013, the tenants, sisters Johania Gonzalez and Maria Kaplani, and their father, Manuel Sena, moved into a rent-stabilized building owned and operated by Anderson Housing Associates.

In late August 2013, the landlord told the tenants they were "illegally harboring a dog in [their] apartment without the landlord's prior written permission" in violation of lease terms.

According to the landlord's notice to cure, the tenants had until Sept. 14 to remove the dog or face termination proceedings.

The landlord, who said the tenants did not remove the dog, filed a holdover summary proceeding in October 2013.

The parties entered a stipulation of settlement in which the sisters acknowledged their older sister brought the dog to visit, but agreed "no pets shall be harbored at the premises in violation of the lease agreement and/or house rules and regulations."

The stipulation allowed the landlord to have reasonable access to the apartment to confirm compliance.

If there was a violation, the landlord was permitted to seek restoration to the calendar through April 2014. The landlord again claimed the tenants were harboring the dog, and the parties entered another stipulation of settlement; again, the tenants said their sister visited with Cookie, but they agreed not to harbor any pets.

The stipulation said that upon violation of the terms, the landlord reserved the right to restore the matter to the calendar through Dec. 31, 2014.

Claiming the situation had not changed, the landlord moved to restore the matter to the trial calendar for the entry of a judgment of possession and the issuance of an eviction warrant.

The landlord said that between November 2014 and January 2015, its agents and an exterminator heard "barking inside the subject premises."

The tenants countered that they were being subjected to illegal harassment and discrimination, saying other tenants with pets were not being bothered.

Moreover, they said that Cookie's visits did not amount to harboring animals.

Vargas held a two-day hearing in July.

The landlord presented witnesses who said they heard the dog in the daytime, but acknowledged never hearing Cookie at night because they did not stay at the property overnight.

One landlord witness, a property manager, said she had heard the dog, as did the building superintendent, her secretary, other tenants and staff members. Another witness said she did not view periodic visits as meaning daily visits.

Cookie's owner, Elizabeth Gonzalez, testified she used to live in New Jersey and work in New York City. She said she did not like leaving Cookie in New Jersey during the week so "once in a while," she left the dog with the tenants during the day and picked her up in the evening.

She said Cookie went through a course to reduce barking and "does not bark that much."

She also said the dog was registered as an emotional support dog to help one of the tenants' daughters recover from spine surgery.

Under cross examination, Gonzalez said on some weeks, she would leave Cookie with the tenants four or five days a week, but never overnight.

The tenants said the dog was aiding the daughter's recovery and said the dog never stayed overnight.

When questioned by the landlord's attorney, tenant Maria Kaplani said they had a dog cage, fed Cookie in the apartment, and knew the lease forbade dogs but said Cookie "never stayed at home."

Vargas in his decision noted that "harboring" a dog has been viewed to mean "more than occasional visits by a pet, but to keep a pet 'openly and notoriously,' taking the dog out for walks during the day, and sleeping at the premises."

For starters, Vargas said the landlord failed to submit the actual lease agreement and he could not assume its existence.

Moreover, the proceeding appeared to be time-barred, seeing that the July 2014 stipulation ran through December 2014 and the motion was submitted in February 2015.

But Vargas said even if he got to the merits, the landlord's case still failed. It was undisputed the dog never stayed overnight and there was no evidence from tenants or others that Cookie was a nuisance.

Nestor Rosado of Manhattan represented the tenants. He said in an interview that the sister still brings Cookie to visit. Since the ruling, the landlord has not bothered his clients, Rosado said.

Barbara Cadet of Gutman, Mintz, Baker & Sonnenfeldt in New Hyde Park represented Anderson Housing Associates. She could not be reached for comment.

Andrew Keshner can be reached via email or on Twitter @AndrewKeshner.

The Tenant Network(tm) for Residential Tenants Information from TenantNet is from experienced non-attorney tenant activists and is not considered legal advice.Subscribe to our Twitter Feed @TenantNet

Upon the foregoing papers and following the hearing, the motion by Petitioner-Landlord Anderson Housing Associates (“Landlord”), for an order restoring the matter back to the trial calendar and declaring that Respondents-Tenants Johania González and Maria Kaplani (“Tenants”) breached the parties’ Stipulation of Settlement, is denied, and the proceeding is hereby dismissed.

I.

Since June 2013, the sister Tenants have been the rent-stabilized tenants-of-record of the subject Premises, known as 1230 Woodycrest Avenue, Apt. 2A, in the Bronx, New York, which are owned and operated by Landlord. The Premises are subject to the Rent Stabilization Laws of 1969 and have been duly registered with the New York State Division of Housing and Community Renewal. Although Tenants initially resided there with their father, Tenant Manuel Sena, he passed away during the pendency of these proceedings. Even before his passing, unfortunately, it is undisputed that problems arose with Landlord almost from their inception of the tenancy as a result of the alleged presence of a dog at the Premises.

As a result, on August 29, 2013, Landlord served upon Tenants a Ten-Day Notice to Cure, alleging that they had breached a substantial obligation of their tenancy by permitting or committing a nuisance, “interfering substantially with the comforts and safety of other tenants, in that” they “are illegally harboring a dog in [their] apartment without the Landlord’s prior written permission in violation of * * * your Lease Agreement” and the accompanying House Rules and Regulations. Tenants were afforded until September 14, 2013 to cure by removing the dog from the Premises under penalty of the commencement oflegal proceedings to terminate their tenancy. According to Landlord, no cure was undertaken by Tenants, prompting Landlord’s subsequent service of a Ten-Day Notice to Terminate their tenancy on October 7,2013, for continuing to illegally harbor the dog at the Premises. Specifically, Landlord alleged that:

On or about August 20, 2013, and on a continuous basis thereafter, the dog that you have been harboring in your apartment has been barking at various hours of the day and night. This has annoyed and disturbed other tenants and severely interfere with other tenants’ right to comfort, safety and quiet enjoyment of the Premises. This conduct has been chronic and persistent and constitutes a nuisance.

Since neither of the Tenants vacated the Premises on the appointed date, Landlord then commenced the instant holdover summary proceeding against them, by Notice of Petition and Petition dated October 8, 2013, to recover possession of the Premises, fair use and occupancy, the issuance of a Warrant and reasonable costs and disbursements, on the grounds that Tenants are harboring a dog at the Premises which action is alleged to be contrary to the provisions of their Lease Agreement and House Rules. On the appearance date of October 30, 2013, the parties entered into a Stipulation of Settlement so-ordered by the Bronx County Housing Court (Doherty, J.), wherein Tenants acknowledged that their older sister’s dog, Cookie, visits the Premises, but agreed that “no pets shall be harbored at the Premises in violation of the Lease Agreement and/or house rules and regulations,” and that they will provide Landlord reasonable access to the Premises for confirmation of the same. Upon default, Landlord could seek to restore the matter to the calendar for appropriate relief up through April 30, 2014.

On May 2, 2015, Landlord sought to restore the matter to the calendar and the entry of a Judgment of Possession in its favor, alleging that Tenants had continued to harbor the unauthorized dog as observed on March 27, 2014. Upon retaining counsel, Tenants filed opposition papers denying that they are harboring any dog and asserting that Landlord had been harassing and discriminating against them since the last proceeding. By Stipulation of Settlement dated July 17, 2014, Tenants again acknowledged that “a sister visits with her [Pomeranian] dog periodically,” but agreed that “no pets shall be harbored at [the]Premises in violation of the Lease Agreement and/or House Rules and Regulations,” and that they will provide Landlord reasonable access to the Premises for confirmation. The Stipulation also provided that, upon default, Landlord reserved the right to restore the matter to the calendar up “through December 31, 2014 for appropriate relief. At that time, the sole issue to be determined shall be breach of this agreement.”

Now, by Notice of Motion dated February 25, 2015, Landlord again moves for an order restoring the matter to the trial calendar for the entry of a Judgment of Possession against Tenants and the issuance of a Warrant of Eviction based on their alleged continuous harboring of the unauthorized dog. Particularly, Landlord claimed that the “dog has been observed barking inside the subject Premises on numerous occasions” by its agents and an exterminator on November 14, 2014, January 6 and 20, 2015, to the detriment of other tenants. In opposition to the motion, by Affirmation in Opposition dated March 8, 2015,Tenants argue that Landlord has been illegally harassing and discriminating against them as other tenants with pets at the building are not being bothered, and they deny violating the Stipulation of Settlement because they are not harboring any dogs at the Premises, only that their sister’s dog, Cookie, visits periodically.

Because the parties did not reach an agreement in this proceeding, the matter proceeded to a full evidentiary hearing before the undersigned on July 7 and 15, 2015 in order to determine whether Tenants breached the July 2014 Stipulation of Settlement. First to testify at the hearing was Landlord’s Property Manager, Ramona Smith, who is employed by Metro Management Development, Inc., which company manages Landlord’s Building. She testified that management became aware that Tenants had a dog at the Premises not long after they moved in June or August 2013 and that they immediately served a Notice to Cure upon them in August 2013, retained counsel and commenced the instant proceeding. On several occasions while doing “vertical” patrol of the building two or three times a week, Ms. Smith testified that she heard the dog barking from inside Tenants’ Premises. She testified that not only her, but the Superintendent, her secretary, other tenants and staff members have told her that they have heard the dog “multiple times.”

She further testified that she was familiar with the Stipulation of Settlement dated July 17, 2014, stating that no pets shall be living at the Premises, but that they could visit “periodically.” On cross-examination, however, Ms. Smith acknowledged that she has never actually seen the dog, and has only heard it during the day because she never stays overnight in the Building. She has been on the hallway outside the Premises and has “consistently heard the animal,” which made her determine that Tenants were harboring the barking dog.

Next to take the stand on Landlord’s behalf was Jennifer Blanco, the Assistant Property Manager, who testified that she goes to the Building once a week to lease apartment units to prospective tenants between 9:00 a.m. to 5:00 p.m., and has heard the dog from inside the Premises on two occasions in the afternoons of November or December 2014 and February 2015. She testified that she has never heard the dog at night because she does not stay there overnight. Similar testimony was provided by Serenity White, who is Landlord’s Administrative Assistant, and testified that she has never seen the dog, but has heard it in the background while speaking with Tenants on the telephone. According to her, Tenants came to the management office to ask whether the dog can visit the Premises. “Periodically visits” to her does not mean to visit “everyday.” Finally, she acknowledged that she is never there at night or overnight, and has not seen the dog at night hours. After this, Landlord rested its case.

In opposition to Landlord’s case, Tenants’ older sister, Elizabeth González, took the stand to testify that she used to live in New Jersey some years back with her family while working in New York City.

During the week, she did not want to leave her dog, Cookie, all day in New Jersey by herself, so she will bring Cookie to visit with Tenants and leave it there during the day “once in a while,” only to be picked up in the evenings at the end of her workday. She testified that Cookie took a course to reduce her barking, and “does not bark that much.” She also stated that the dog was recently registered as an emotional support dog to help one of Tenants’ daughter to recover from a surgery to correct a curvature in her niece’s spine. On cross-examination, Ms. González recognized that on some weeks she will leavethe dog at Tenants for either four or five times a week, while she worked, but was never left overnight at the Premises.

Tenant Johania González next testified that she lives with her sister, Tenant Maria Kaplani, and that neither have a dog, but that Cookie will visit them two to three times a week while her older sister went to work since last July until the present. She corroborated that Cookie comes some times during the week, but “never” stays overnight. She asserted that her daughter, Ambar Nicole González, who is 17 years old, had a recent operation to correct a medical condition she had since childhood, a curvature of her spine known as Scoliosis, and is currently receiving treatment and therapy at home. According to TenantGonzález, her daughter Ambar is benefitting tremendously from the presence of Cookie at her home because the dog relieves her anxiety and depression, and actually helps her exercise and complete her therapy sessions. On cross-examination, Tenant González acknowledged that Cookie comes to the Premises two or three times a week. She further admitted that the surgery was very recently in April 2015, and that she would like to have Cookie visit more with her daughter, but not to stay permanently. According to González: “Even if the dog visits, it says ‘periodically,’ so two or three days is periodic;” the dog never “stays to sleep” in the house.

Finally, Tenant Maria Kaplani testified on her own behalf that Cookie visits her home but has never “stayed until really late.” She explained that the dog never stays with them at the Premises because her older sister has a minor daughter and son who are very attached to Cookie and need her home every night. Tenant Kaplani emotionally testified that she raised and is like a second mother to Ambar and would like to have the dog, Cookie, continue to visit her Premises because it helps Ambar with her depression, especially given the fact that she had tried to commit suicide in the past apparently due to her spinalcondition. On cross-examination, Tenant Kaplani admitted that they have a dog cage and plates for Cookie because her older sister brings dog food and they feed her at the Premises. She testified that she signed and knew that the Lease prohibits dogs, but that the dog “never stayed at home.” She further explained that her older sister leaves the dog only certain days because she only works four times a week.

Following the testimony in chief, both parties rested and gave oral summations to the Court. The Court afforded the parties an opportunity to submit Memoranda of Law, but neither party submitted the same.

II.

It is well-settled that clauses in lease agreements prohibiting the harboring of pets by tenants are “reasonable and enforceable,” and their violation “constitutes a substantial breach of an occupancy agreement” (Pollack v Green Constr. Corp., 40 AD2d 996 [1972], affd no opn 32 NY2d 720 [1973]; see Linden Hill No. 2 Coop. v Leskowitz, 41 AD2d 741 [1973], affd no opn 34 NY2d 580 [1974]; Landmark Properties v Olivo, 5 Misc 3d 18, 20 [AT 2nd 2004]). Such provisions may also be contained in stipulations of settlement between parties on pending proceedings, which are binding contracts favored and enforceable by thecourt, and not “lightly cast aside” (Hallock v New York, 64 NY2d 224, 230 [1984]; see Matter of Galasso, 35 NY2d 319, 321 [1974]), “especially where, as here, the party * * * was represented by counsel” (Kelley v Chavez, 33 AD3d 590 [2d Dept 2006]; see Town of Clarkstown v M.R.O. Pump & Tank, Inc., 287 AD2d 497 [2001]). “Harboring” a dog has been interpreted to mean more than occasional visits by a pet, but to keep a pet “openly and notoriously,” taking the dog out for walks during the day, and sleeping at the premises, all these for a significant amount of time without the landlord’s permission (see 184 W. 10thSt. Corp. v Marvits, 59 AD3d 287, 288 [2009]; 3720 Homes, Inc. v Hyman, 30 Misc 3d 79, 80 [AT 2010])

Applying the foregoing principles to the matter at bar, Landlord has failed to demonstrate that Tenants breached the Stipulation of Settlement based on the purported Lease Agreement allegedly in existence between the parties. Preliminarily, there are two threshold questions not raised by either party which appear to prevent this Court from substantively considering the merits of Landlord’s case. First, Landlord has failed to submit to this Court for examination either as an attachment to its moving papers, or as evidence at the trial, the actual Lease Agreement governing the parties herein or the allegedHouse Rules and Regulations ostensibly containing the No-Pets rule. This Court is not inclined to, nor can just assume the existence of a Lease Agreement or of House Rules, much less the existence of the No-Pets Rule purportedly contained therein (see Jefferson Assocs. v Miller, 63 Misc 2d 1056, 1058 [NYC Civ Ct 1970] [“It should be noted that nowhere in the lease itself is there any mention made of the harboring of a dog so as to constitute a substantial violation”]). Secondly, the July 2014 Stipulation clearly stated that Landlord may restore the proceeding for a determination of the existence of a breach “through December 31, 2014.” Because the Notice of Motion to restore herein is dated February 25, 2015, the instant proceeding appears to be time-barred in accordance with Landlord’s own probationary period. That the Tenants allegedly violated the Stipulation in November 2014 did not permit Landlord to sit idly and wait for over three months to institute this motion.

Nevertheless, even if this Court were to consider the substantive merits of the instant motion based on Tenants’ failure to raise the abovementioned threshold issues, it would still fail. With the testimonial evidence offered at the hearing, Landlord did not clearly establish that Tenants breached the July 2014 Stipulation of Settlement. One by one Landlord’s agents merely testified that they have heard a dog barking inside the Tenants’ Premises some days during regular business hours, but they all acknowledged that they have never seen the dog or heard the dog during the evening or overnight hours. None of themhad stayed at the Premises before nine o’clock in the morning or after five o’clock in the afternoon, so none could testify that the dog was there at all hours of the day and night and slept at the Premises.

Although Tenants candidly admitted that Cookie visited them during the day two to four times per week, it was undisputed that the dog never stayed overnight or beyond an hour “really late” at night. Nor is there any evidence from other tenants, the exterminator or other individuals to the effect that Cookie’s presence at the Premises some days of the week constituted a nuisance or that she “annoyed and disturbed other tenants and severely interfere with other tenants’ right to comfort, safety and quiet enjoyment of the Premises” (see 3720 Homes, Inc. v Hyman, 30 Misc 3d at 80-81 [AT 2010]). Under these circumstances, it cannot be said that Tenants harbored the dog at the Premises other than for her visits on periodic occasions.

III.

In accordance with the foregoing, Landlord’s motion to restore the matter to the calendar and for the issuance of a Judgment of Possession against Tenants, is denied and the proceeding is hereby dismissed.

The foregoing constitutes the decision, order and judgment of the Court.

The Rules for Allowing Pets in 'No-Pet' BuildingsAdam Leitman Bailey and John M. DesiderioNew York Law JournalApril 13, 2016

When determining whether an owner's pet qualifies for admittance in a "no-pet" building, cooperatives and condominiums must be extremely careful to follow the federal, state, and city fair housing laws governing how far a board can go when investigating and denying an animal's entrance. Federal prosecutors in the Southern and Eastern Districts of New York have been particularly aggressive in enforcing anti-discrimination laws against landlords and housing complexes that have allegedly demonstrated an unwillingness to implement house rules and polices that accommodate residents who request permission to keep dogs or other animals medically required to support their disability.[1] As a result, the government has obtained sweeping consent decrees that require affected New York co-ops to adhere to the terms of government-prescribed "reasonable accommodation policies" that virtually remove all board discretion in deciding whether to waive building no-pet policies.

Diverse Standards

The laws that protect persons with disabilities apply diverse standards. While all of the laws essentially agree on the circumstances under which a person is deemed to be disabled, each of the applicable laws defines "disability" or "handicap" in slightly different ways.

The Fair Housing Act (FHA). The FHA protects people against discrimination when they attempt to obtain non-public housing. Landlords and co-ops cannot discriminate against people based on their race, color, national origin, religion, sex, disability or because they have children. To qualify as disabled under the FHA, a person claiming the disability must show (i) that he or she is an individual that has a physical or mental impairment which substantially limits one or more major life activities, (ii) that the individual is regarded as having such an impairment, and (iii) that there is a record of such impairment.[2] The impairment requirement has been broadly construed under the FHA to include people who suffer from depression, anxiety disorders, post traumatic stress disorder PTSD and bipolar disorder.[3]

Major life activities have been found to include caring for oneself, performing manual tasks, working, learning, breathing, speaking, seeing and hearing.[4] Any activity that is of central importance to one's daily life is considered to be a major life activity.[5] In addition, persons claiming the disability must be able to show that there is a connection between the accommodation they have requested and their disability; i.e. that having a dog, or other assistance or emotional support animal, in their apartment, in a building that has a "no-pet" policy, is connected to their disability, such that having the animal will allow them to conduct everyday activities that they would not be able to do without living with the animal.[6]

As long as a request for a reasonable accommodation does not create an undue financial or administrative burden on a landlord, or fundamentally change the nature of a building, the accommodation must be provided to the person claiming the disability.[7] Requesting that "no-pet" rules be waived has not been found to impose such a burden. The FHA does not have a definition of a service or companion animal, and an animal may be considered an emotional support or companion animal under the FHA without being trained to perform any specific task.[8]

The Americans With Disabilities Act (ADA). The ADA protects Americans with disabilities from being discriminated against by employers, public entities (which include state and local public housing, but not private housing), public accommodations, and in telecommunications. The entities that are covered by the ADA must make "reasonable modifications" in their policies, practices, and procedures to accommodate people with disabilities. This includes public entities with "no pet" policies. The ADA mandates that buildings waive their "no-pet" policies for any disabled residents who requires a service animal. Service animals are defined as "dog[s] that have been individually trained to do work or perform tasks for an individual with a disability."[9] The tasks performed by the dog must be directly related to the person's disability. Service animals are different from pets because they are trained to assist people with their disabilities. Dog training requires that the dog be "trained to take a specific action when needed to assist the person with a disability."[10] Under the ADA emotional support and companion animals are not considered service animals, because they have not been trained to do work or perform a specific task related to a person's disability.[11] Comfort, therapy or companion animals are animals that provide comfort by being with a person, and are not trained to perform a specific task to assist a person with their disability. However, as previously noted, the coverage of the FHA is broader than the ADA and does require that buildings waive their "no-pet" policies for emotional support animals.

New York State and New York City Laws. In New York, compliance with the law is further complicated by the fact that the New York State Human Rights Law and the New York City Human Rights Law each contain a more expansive definition of what constitutes a disability, and the city's definition differs from that of the state.

Under the New York State Human Rights Law, disability is defined as "a physical, mental, or medical impairment resulting from anatomic, psychological, genetic, or neurological conditions which prevents the exercise of a normally bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such impairment or (c) a condition regarded by others as such an impairment."[12] Further, "if the disability does not 'substantially limit' major life activities and/or cause the loss of a body function, then it should have a name, accepted by the relevant professional community."[13]

Under the New York City Human Rights Law, a person with a disability is defined as a person having "any physical, medical, mental or psychological impairment, or a history or record of such impairment."[14] This includes a wide range of things, such as impairments of any of the body's systems, including, but not limited to, the neurological system, the musculoskeletal system, respiratory system, and any mental or physiological impairment.[15]

The Case Law

Although a finding of an unlawful denial of a "no-pet" waiver can have the severe results noted above, where a building disputes that its denial was discriminatory, the person who requested the waiver must nevertheless demonstrate that he or she suffers from a disability recognized by law. To prevail on a failure to accommodate claim under FHA, the plaintiff must prove (a) that he or she is disabled within the meaning of the FHA, (b) that a request for a reasonable accommodation was made, (c) the requested accommodation was necessary to afford the person an opportunity to use and enjoy his or her dwelling, and (d) that the defendant refused to make the accommodation.[16]

The case law teaches that "[w]hether a requested accommodation is required is 'highly fact-specific,' requiring case-by-case determination."[17] In Ayyad-Ramallo v. Marine Terrace Associates,[18] the court found that the plaintiff who had diabetes failed to identify an activity, "no less a 'major life activity,' that she claims to be impaired by her diabetic condition….or how any of plaintiff's conditions 'substantially limits' a major life activity."

Similarly, in Matter of 105 Northgate Co-op v. Donaldson,[19] the court held that "the complainant failed to demonstrate, through either medical or psychological expert testimony or evidence, that she required a dog in order to use and enjoy her apartment unit." Likewise, in Matter of One Overlook Avenue Corp. v. New York State Division of Human Rights,[20] the court found that, without expert medical or psychological expert testimony or evidence, the complainant failed to demonstrate that her son required a dog in order for him to use and enjoy the apartment.

On the other hand, where the resident requesting the "no-pet" waiver accommodation has presented medical information that clearly confirms his or her disability and the requisite need for the accommodation, any intentional delay and/or spurious excuse for not granting the accommodation will be readily found to be pretextual and discriminatory. A prevailing plaintiff is not only entitled to injunctive relief compelling the waiver, but also to reasonable attorney fees and costs. In one such case, the plaintiff was awarded $5,000 in compensatory damages and $100,000 in attorney fees.[21]

The Waiver Process

What is the best way to avoid a finding of discriminatory denial of a "no-pet" waiver? In this legal environment, almost any animal may qualify for a waiver. Therefore, it is important that buildings with "no pet" policies be able to clearly distinguish assistance animals from ordinary pets and companion animals. House rules should be reviewed and updated, wherever appropriate, to clearly presecribe and enable the implementation of a waiver application process that does not violate the legal mandate to reasonably accommodate a disabled resident's need for a service or other assistance or emotional support animal.

A waiver process that addresses the following points should be implemented by any building management (whether landlord or condominium or co-op board) that wishes to maintain a general "no pet" policy for all residents other than those who have a disability for which an assistance animal is required:

The "no pet" house rule should make it clear that it is the responsibility of the disabled resident to advise the management in writing of the resident's disability and the need for an assistance animal. Except in the case of a resident whose disability is readily discernible, it is not management's duty to seek out the disabled resident and ask whether the resident wants a waiver. Unless a waiver is requested, any animal not clearly perceived to be an assistance animal may be presumed to be a pet or companion animal and, therefore, may otherwise be subject to the building's "no pet" policy. This should apply equally to the animals of any guests of the disabled resident.

Once advised by the resident of his or her disability status, management is permitted to make a reasonable and limited inquiry concerning the nature of the disability and how an assistance animal is expected to provide assistance or support for the resident's particular disability. Where the nature of the disability, as in the case of blindness, is readily discernible, no inquiry is permitted. However, in all other cases, as part of the waiver process, the resident may be requested to submit a written statement from his or her medical professional, therapist, or clinical social worker attesting to the physical or emotional need of the resident to possess an assistance animal. With the consent of the resident, management may contact these professionals, but only to verify the disability and to obtain information necessary to evaluate whether the assistance animal is needed because of the disability.[22] Inquiring for detailed information about the nature of the disability is not permitted. It is recommended that all such contacts be made by an attorney.

Questions Allowed

The questions that management may ask regarding emotional support animals include:

• How long has the doctor or health professional been treating the resident?

• What are the symptoms of the resident's disability?

• What functional limitations does the resident face because of the disability?

• Which of the resident's major life activities are impacted by the disability?

• How will the service dog, assistance animal, or emotional support animal help the resident cope with the disability or lessen the synptoms of the disability?

• What literature explains the benefits that the resident receives from having an emotional support animal?

• Why is the emotional support animal necessary for the resident to use and enjoy the apartment?

The following questions are ones that that management may not ask regarding emotional support animals:

• Do NOT ask for copies of the resident's medical records.

• Do NOT ask about the severity of the disability.

• Do NOT ask how the resident's diagnosis was made.

• Do NOT ask if the condition is temporary or permanent.

Obeying Other House Rules

Despite the granting of a waiver by the building management, the owner of any service, therapy, or emotional support dog is still obliged to comply with the local municipal laws that otherwise apply generally to all dogs. Therefore, prior to occupancy in the building of any service, therapy, or emotional support dog, the resident may be required to submit proof that the dog is duly licensed by the city of New York and proof that the dog has received such vaccinations as the law requires. Proof of vaccinations may also be requested for any other service, therapy, or emotional support animal for which vaccinations are required by law.[23]

House rules may also govern the ownership and use of assistance animals in the building in other non-discriminatory ways. For example, the disabled resident may be requested to provide photographs of the face and body of all animals living in his or her apartment. Such photographs may be kept on file to ensure that a particular animal in the building is indeed the animal for which the "no pet" waiver has been given. In addition to such photographs, the resident may be requested to provide a written statement setting forth the animal's species, approximate age, weight, breed, if any, and colors, but such rules may not be used to limit the size or weight of any assistance animal.

Service, therapy, or emotional support animals are free to enter all common areas of the building, but house rules may require that the animals be either carried or on a leash. Moreover, notwithstanding the granting of a waiver of the "no pet" policy, house rules may specify that the assistance animal of a disabled resident will be allowed on passenger elevators only with and under the control of the resident to whom the waiver has been given for that animal. Any such animal in the temporary custody or control of a person other than the owner of the animal, such as a dog walker or guest, may be required to use the service elevator when it is in operation. (Residents may be advised to verify the availability of the service elevator by calling their building doorman.)

Any waiver of the building's "no pet" policy may be revoked whenever an assistance animal behaves habitually in such a manner as to constitute a nuisance. Such behavior may include, but is not limited to, repeatedly causing damage to or soiling the common areas of the building, repeated loud and excessive barking or whining disturbing to other residents of the building, repeated disobedience of and/or lack of control by its owner or handler, or any behavior that poses a danger to the health or safety of any person in the building. Any animal deemed a nuisance may be subject to removal from the building. It is recommended that house rules provide for such removal upon 30-days written notice, unless the owner or handler corrects the animal's behavior within such time, but upon 24-hour written notice if the animal poses an immediate danger to health or safety. House rules should also reserve the right to revoke a waiver whenever it is made known, or becomes evident, to the management that the person granted the waiver no longer suffers from a disability for which an assistance animal is required.

Adapting to Avoid Liability

As noted above, the managers of residential buildings, whether they be landlords, boards of condominiums or of cooperative corporations, or their managing agents, and the attorneys advising such clients, need to become familiar with all of the various layers of laws and regulations that govern the acceptance of assistance animals in housing and the manner in which waivers of "no pet" policies may be processed and granted. The need to do so is becoming more and more evident, and the need to distinguish between genuine requests requiring the granting of a waiver, and possible sham requests made with the implied threat of a civil rights complaint, dictates that clear and non-discriminatory procedures be implemented and routinely followed to ensure that a building's management team may at all times process "no pet" waiver applications in good faith without an inordinate fear of potential liability.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lydia C. Lai, J.), entered July 25, 2014. The order, insofar as appealed from, granted the branch of tenant's motion seeking to dismiss the petition in a holdover summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this holdover proceeding based on a claim that tenant had violated her lease by harboring a pet without landlord's permission, tenant asserted that landlord had brought a prior proceeding for the same relief, which proceeding had been dismissed based on the Civil Court's determination that the predicate notices were defective. Tenant claimed that landlord had commenced the instant proceeding more than three months after landlord had concededly become aware that tenant was harboring a pet and, thus, that the proceeding was not timely.

Landlord's contention on appeal that CPLR 205 (a) tolled the operation of Administrative Code § 27-2009.1 (b) from the time of the dismissal of the prior proceeding to give landlord an additional six months to commence a new proceeding is without merit. CPLR 205 (a) has no application to Administrative Code § 27-2009.1 (b), which does not impose a statute of limitations but, rather, a waiver of a landlord's right to enforce the no-pet clause of a lease agreement. As a result of the waiver, the cause of action for breach of the no-pet provision of the lease ceases to exist. Thus, the Administrative Code section provides a substantive qualification on the right of action, rather than a statute of limitations (see Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 378 [1999]).

Landlord's contention that its proceeding should be deemed timely based on Baumrind v Fidelman (183 AD2d 635 [1992]) is also without merit. In Baumrind, the Appellate Division, First Department, allowed the maintenance of a no-pet summary proceeding that had not been commenced within the three-month period where a prior timely commenced proceeding had been discontinued without prejudice, pursuant to a stipulation, as process had not been properly served. However,Baumrind has since been expressly limited to its unique facts, including that the first proceeding had concluded in a stipulation of discontinuance without prejudice (see Seward Park Hous. Corp. v Cohen, 287 AD2d at 163; Gold Queens, LLC v Cohen, 42 Misc 3d at 18-19), a fact which is absent here.

We have considered landlord's other arguments and find them to be without merit.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: September 20, 2016

The Tenant Network(tm) for Residential Tenants Information from TenantNet is from experienced non-attorney tenant activists and is not considered legal advice.Subscribe to our Twitter Feed @TenantNet